Research On The Legal Question Of The Rights Protection In Affiliated Transaction

The affiliated transaction, as the effective way of resource distribution, is a way of non-market oriented price transaction. The affiliated transaction is widespread in economic activity. The fair affiliated transaction has positive significance. The unfair affiliated transaction can exercise a great adverse influence. So we must support the fair affiliated transaction and regulate the unfair affiliated transaction. This thesis divides into four parts:The first part is the outline about the affiliated transaction. The affiliated party is the general designation to definite the external range of the affiliated transaction and the affiliated transaction is the item of resource or obligation transaction, no matter whether the cost collected.The affiliated transaction exists extensively in the economic activity. The legitimate affiliated transaction has positive meanings. Seeing from real example analysis, first, the affiliated transaction can reduce transaction cost and increase transaction success rate. Second, through the affiliated transaction some tax can be deducted or exempted. Third, it can give full play to the role of the stock lever, offer a chance developed above average for the subject of economic activity. From the angle of the theory of economics, the affiliated transaction accords with the rare resource utility theory. But the danger brought by the minority stock holder, creditor, interior employee, other independent enterprises and macroeconomics may all infringed by the affiliated transaction, so we must take effective measures to regulate illegal affiliated transaction and protect the proper affiliated transaction.The second part is from the angle of the inside governance mechanism to expound the rights and interests protection problem in the affiliated transaction. The beforehand inside governance mechanism express mainly on the aspect of the corporate governance as a perfect structure, its mission is to ensure the rights of every subject belong to their standard. No one can above the standard or below the standard. The current inside governance structure usually includes three aspects: the power body-AGM, the executive body-the Board and manager; the supervisory body- the Supervisory Board. But now, the principles of the AGM are "majority rule" and "one share one right" under such principle, the big shareholder with their overwhelming majority can deprive many rights of the medium and small shareholders, and in the board voting of the managing activity, the affiliated transaction can pass smoothly under the control of the agent of the big shareholder, because there are lack the agent of the medium and small shareholder. The interests of the medium and small shareholder are sacrificed. The current supervisory body doesn't play their right function, but changed to a dependency and on looker of the Board and the manager. The supervisory body should be a neutral party without any bind interest. Only this can keep the supervisory activity fair and unselfish. The present situation of the inside governance structure become a bottleneck of the protection of the interests of the medium and small shareholder under the affiliated transaction. In order to let the medium and small shareholder enjoy substantive equality, we must overthrow the current absolute principle of equal share equal rights. In some areas, to remove the right to vote of the controlling shareholder, to let the final ruling rights into the hand of the potential injured party- the medium and small shareholder. This method is not only the normal demand of exercising the right to vote, but can lead to substantive fair. In the big economic unit, establish independent director to make clear the agent of the medium and small shareholder in the Board. In medium and small unit, we can promote a new power balancing board mode using the court system in the foreign political system as a reference, recommend multilateral governing mechanism to safeguard the interests of the weak. As the component of current supervisory body lack...