On The Legal Protection Of Creditor's Interests In Connected Transaction

Related transaction is a common form of transaction.In terms of optimizing resource allocation,saving transaction cost and simplifying transaction process,related transaction can play its inherent advantages,so as to better promote the transaction to continue.However,with the rapid development of the economy,the defects of related transactions have gradually exceeded their own advantages,and in the related transactions,the inequality between the two parties in the status of the main body,more intensified the related transactions in the benefit distribution of the imbalance.At the very beginning,the purpose of related transaction is to reduce the unnecessary links in the company's operation,reduce the cost,disperse the risk and maximize the profit.However,unfair related party transactions will seriously affect the normal competition order of the market,lead to the loss of interests of minority shareholders and creditors,and affect the national tax.At present,China is in a special period of serious lack of commercial credit,and the frequent occurrence of unfair related transactions not only seriously damages the legitimate rights and interests of the company's minority shareholders and creditors,but also seriously endangers the stability of the security market order.Our country and related transactions related law and judicial explanation in theory and practice of exploration,is gradually confirmed that legal person personality denial system,transaction system of information disclosure system and so on,but the current laws and regulations there are still many deficiencies,is difficult to effectively cope with current reality need to strengthen the connection transaction regulation,the basic requirement to protect the interests of creditors in related party transactions.Based on the basic theoretical analysis of related transactions and creditor protection,this paper expounds the legal protection of creditors' interests in related transactions from different perspectives.In addition to the introduction and conclusion,this paper consists of the following four parts:The first part is an overview of related party transaction and the basic theory of creditor in related party transaction.Including the concept,legal characteristics and types of related transactions;Definition,scope and characteristics of creditors in related transactions;On this basis,the paper analyzes the necessity of protecting the interests of the creditors in the related transaction and the risks that the creditors in the related transaction face.The second part is the elaboration and analysis of the legislative status and existing problems of the creditor interest protection system in China.This paper mainly introduces and analyzes the provisions and systems of protecting creditors' interests in related transactions in the company law,bankruptcy law and securities law,and on this basis,points out some problems in protecting creditors' interests in related transactions in the current legislation and relevant provisions.The third part is the discussion on the legislative practice and experience of protecting the interests of creditors in related transactions.Firstly,by means of analysis and comparison,this paper introduces the legislative practices of the representative countries in the continental law system and the Anglo-American law system,namely the United States and Germany,as well as the provisions of relevant laws in Taiwan on the protection of creditors' interests in related transactions.Secondly,by analyzing the practice of extraterritorial legislation,it is pointed out that the experience of creditor protection in the aspects of prior protection,ex post liability,burden of proof distribution and information disclosure in extraterritorial legislation is worth learning from.The fourth part is about the improvement of the creditor's interest protection legal system in related transactions.It is pointed out that based on China's national conditions and current economic development,the protection of creditors' interests in related transactions should be improved from the following three aspects: pre-protection mechanism,in-process regulation mechanism and post-event relief mechanism.Firstly,in terms of the protection mechanism in advance,it is mainly aimed at the deficiencies in the current legislation and the shareholders' obligation of good faith and other systems to modify and improve;Secondly,in terms of the regulation mechanism,it is necessary to establish and improve the related transaction reportsystem and information disclosure system.Finally,in the aspect of post-event remedy mechanism,it is necessary to establish and improve the accountability mechanism for improper related party transactions,the reasonable distribution system of burden of proof in litigation,and the introduction of the American principle of "second place in equity" in bankruptcy proceedings.There is no doubt that the establishment of a sound legal and regulatory mechanism is an inevitable requirement to protect the interests of creditors in related transactions and plays an extremely important role in the healthy development of market economy.