Protection of unfair affiliated transactions of the creditors of the company
|Course||Civil and Commercial Law|
|Keywords||unfair related transaction the corporate creditor the right of revocation|
The related transactions seemly are voluntary trade behaviors between the equal and independent subjects, but they are virtually decided by the dominant stockholders,the actual controllers, the directors, the supervisors or the deluxe managers, for these people have the control right and the important influence, determining that the prices are high or low,even that the prices are for free or not. From the achievement to the implement of the related transactions agreements, the independent will of the company is filtered,and only the will of the parties concerned is embodied. The related transactions, in which the unfair tendency exist, are dangerous to the stakeholders, such as the company creditors. The company creditors are always in the relatively weak position.The unfair related transactions violate the interests balance theory, the principle of banning right abuses and the corporate social responsibility theory.Therefore, we need to strengthen the protection of the company creditors in the unfair related transactions.The forms of the unfair related transactions are diverse and complicated,and the typical forms include the related marketing.To judge that the related transactions are fair or not, the key is the level of the transactions prices,and the general standard is whether the transactions prices are in the appropriate range. We can use two kinds of the methods,the arm length trade comparison method and the competitive market comparison method, which contact mutually to judge,or we can use one of them. We can judge by refering to the method of the normal trade price confirmed by all countries,such as the rule of comparable uncontrolled price. We can also consult article19of "contract law" judicial interpretation (2).The weakness of the protection of the company creditors in the unfair related transactions by the Corporation Law lies in the restriction of the related transactions approval system, the defect of the elimination of voting system, the limitation of regulating the related transactions effectiveness,and the predicament of the "Piercing the Corporate Veil " system.Transfering the protection of the company creditors to seeking the general protection by the civil law becomes an inevitable choice. The system of the creditors’right of revocation is a good method of judicial relief.There are four main theories on the character of the creditors’ right of revocation.The essential conditions of the corporate creditors’ right of revocation are made up of four aspects:the corporate creditors’, the corporations’, the related parties’and the turned persons’ essential conditions.The corporate creditors are for their own names in lawsuit to exercise their right of revocation. Because of the different understanding the nature of the right of revocation, the nature of the suit is different, and the persons concerned are also different.The range of the right of revocation is within the limition of the corporate creditors’ right,who have filed the lawsuit. Whether the period of the right of revocation lasts for one year or five years, its nature is scheduled period, but the point of the starting count is different.Once the period passes, what the corporate creditors lose is the right of revocation itself.The necessary expenses,such as lawyer’s agency fee, travel expenses etc,which are paid for the exercise the right of revocation,should be burdened by the corporation.If the related parties make mistakes,they should burden it appropriately.The effect of the exercise the right of revocation should adopt the relatively ineffective view,and it is ineffective in necessary range of the joint guarantee. What is beyond the range of it continues to be effective, not within the corporate creditors who do not participate in the litigation.In the occasion of no offset, the properties taken back should be shared equally by all the ordinary corporate creditors, but there is a sequence problem of actual performance.It is suggested that the corporate creditors who exercise the right of revocation have prior right. Once the unfair related transactions are revocated,it is ineffective that the corporations have abolished the related debts,and the related parties accepting the corporations’ properties are in duty to return the properties or reimburse.If the turned persons accpeting the properties are gratuitous,or with costs but malicious, the effect of the right of revocation is within them.