中国关联交易司法审查制度的变迁与展望

Abstract

Chinese Corporation Act doesn’t have a complete system of rules for interested transactions. The main rule to make sure that the transaction is fair and the interest of company is protected is the judicial review rule focusing on whether the interest of company is impaired. However, the judicial review rule doesn’t provide the standard of review, the contents of review and the position of different elements of the interested transaction.Based on analysis of the cases, different courts treat interested transactions differently: some value the autonomy of the company while some value the intrinsic fairness of the transaction; accordingly, they take procedures, information disclosure, business judgment, consideration and price as the contents of review; and some take both procedural and substantial elements into consideration, some only look at one aspect. Also, some courts invented the special burden of proof rule for interested transaction. The draft of Corporation Act differentiates the interested transaction conducted by controlling shareholder and actual controlling person with the one conducted by director and officer and doesn’t take how the Explanation of the Corporation Act stipulated about the review made by the People’s Supreme Court of China. Hence, there is still no specific review rule for the interested transaction. Considering the deficiency of the draft and the need in practice, the revision of the Corporation Act in the future may focus on matched ex ante procedural rules, special burden of proof rule and elaborate standard of review in the aspects of judicial review rule for interested transaction.