On the Unified and Comprehensive Regulation of Conflict-of-Interest Transactions——Starting from the Reflection on the Differentiated Regulation of the Company Law
There are two methods to regulate the conflict-of-interest transactions:"judicial review of fairness"and"corporate autonomy through procedures".Article 21 and Article 148 paragraph 1(4)of the Company Law are the corresponding norms of the two regulations.The two Article of the Company Law respectively regulate two types of conflict-of-interest transactions,resulting in judicial disputes on whether related party transac-tions must go through autonomous procedures and whether self-dealing must satisfy transaction fairness,and causing theoretical disputes about whether the two kinds of transactions should be regulated separately or uni-fied.There is no essential difference between the two kinds of transactions,and the different transaction sub-jects of the two kinds of transactions cannot justify that they should be regulated differently.The conflict-of-interest transactions should be used to capture the two types of transactions and regulate them uniformly.Un-der this premise,the two regulatory methods of"judicial review of fairness"and"company autonomy through procedures"are comprehensively used.In other words,a normative system is constructed based on the princi-ple of"company autonomy is given priority,and judicial review is the bottom line",and takes the identifica-tion rules,disclosure rules,approval rules and validity rules as the normative group.Specifically,under the identification rules,conflict-of-interest transactions include those in which the company's controller,director,supervisor and senior executive are the counterpart of the transaction or have related relationship or material interest with the counterparty,but it does not include transactions that simply benefit the company or that treat all shareholders fairly;under the disclosure rules,conflict-of-interest transactions should be reported to the company in a timely manner;under the approval rules,the Company Law shall empower the company to decide whether and what approval procedure to adopt;under the validity rules,the unfairness of the transac-tion is added as the cause of the validity defect of the transaction.
Related Party TransactionsSelf-dealingConflict-of-Interest TransactionsJudicial Re-viewCompany Autonomy
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