1. What are the scope of related party transactions?
According to the provisions of the tax law, related party transactions mainly include:
1. Transfer of the right to use or ownership of tangible assets.
Tangible assets include commodities, products, houses and buildings, vehicles, machinery and equipment, tools and appliances.
2. Transfer of financial assets.
Financial assets include accounts receivable, bills receivable, other accounts receivable, equity investment, debt investment and assets formed by derivative financial instruments.
3. Transfer of the right to use or ownership of intangible assets.
Intangible assets include patents, non-patented technologies, trade secrets, trademarks, brands, customer lists, sales channels, franchise rights, government licenses, copyrights, etc.
4. financing.
The funds include all kinds of long-term and short-term loan funds (including the group fund pool), guarantee fees, all kinds of interest-bearing prepayments and deferred payments.
5. Labor transaction.
Labor services include market research, marketing planning, agency, design, consulting, administration, technical services, contract research and development, maintenance, legal services, financial management, auditing, recruitment, training, centralized procurement, etc.
2. What are the adverse effects of related party transactions on the company?
1. Related party transactions may increase the company's business risks, make the company fall into financial difficulties, and may lead to bad debt risks: if the major shareholder provides guarantees, funds or the major shareholder occupies the company's funds in other ways, it will bring potential financial risks to the company; If unfair transactions are made with major shareholders and related personnel, the company's profits will be reduced.
2. Affect the company's ability to operate independently and reduce its ability to resist external risks. Too many related party transactions will reduce the competitiveness and independence of the company and make the company rely too much on related parties, especially the major shareholders. For example, the main targets of some companies' raw material procurement and product sales are related parties, and their operational autonomy is subject to many restrictions. Due to the poor independence of the company and strong dependence on related parties, the market competitiveness has declined. If it is difficult for related parties to protect themselves, the company may enter a trough.
Related party transactions between companies are a new type of transactions. However, because the number of companies involved in related party transactions will increase and different opinions will increase, it is likely to have a certain impact on the company's operation. No transaction method can involve illegal items, otherwise it will be sanctioned by law.
Legal basis:
Company Law of the People's Republic of China
Article 21 The controlling shareholders, actual controllers, directors, supervisors and senior managers of a company shall not use their related relationships to harm the interests of the company.
Anyone who violates the provisions of the preceding paragraph and causes losses to the company shall be liable for compensation.
Article 216 The meanings of the following terms in this Law:
(1) Senior management refers to the manager, deputy manager, financial officer, secretary of the board of directors of a listed company and other personnel stipulated in the articles of association of the company.
(2) Controlling shareholders refer to shareholders whose capital contribution accounts for more than 50% of the total capital of a limited liability company or whose shares account for more than 50% of the total share capital of a joint stock limited company; Although the capital contribution or the proportion of shares held is less than 50%, but according to their capital contribution or shares held, shareholders have enough voting rights to the shareholders' meeting and the resolutions of the shareholders' meeting.
(3) "Actual controller" refers to a person who is not a shareholder of the company, but can actually control the company's behavior through investment relations, agreements or other arrangements.
(4) Relationship refers to the relationship between the controlling shareholder, actual controller, directors, supervisors and senior managers of the company and the enterprises directly or indirectly controlled by them, as well as other relationships that may lead to the transfer of the company's interests. However, state-controlled enterprises are not related only because they are controlled by the state.
Provisions of the Supreme People's Court on Several Issues of Application (V)
Article 1 If the related party transaction harms the company's interests, the plaintiff company requests the controlling shareholder, actual controller, directors, supervisors and senior managers to compensate for the losses according to Article 84 of the General Principles of the Civil Law and Article 21 of the Company Law. The people's court will not support the defense raised by the defendant only on the grounds that the transaction has fulfilled the procedures of information disclosure, shareholders' meeting or shareholders' meeting as stipulated in laws, administrative regulations or the company's articles of association.
If the company has not brought a lawsuit, shareholders who meet the conditions stipulated in the first paragraph of Article 151 of the Company Law may bring a lawsuit to the people's court in accordance with the provisions of the second and third paragraphs of Article 151 of the Company Law.