论定增中非公允关联交易的法律规制

发布时间：2018-02-14 15:15

本文关键词： 定向增发非公允关联交易控制权信息披露　出处：《河北法学》2015年10期 　论文类型：期刊论文

【摘要】：近年来实务界屡屡曝光上市公司控股股东通过定向增发来掏空上市公司,不仅极大地损害了投资者利益,导致资本市场资金配置不合理,更扰乱了资本市场正常的融资秩序。因为对象的特定性,定向增发往往伴随着关联交易,随着立法管制的加强,为了规避非公允关联交易带来的法律责任,近年来增发中的关联交易异变为更加隐蔽的非关联态势,应该注重判断关联交易是否明显属于单方获利性交易,同时对非公允关联交易的定性落脚点放在控股股东利用控制地位侵害上市公司的公司和中小投资者利益上。由于我国现有立法不周密的原因及上市公司一股独大的现状,控股股东与董事高管在增发中共谋滥权进行非公允关联交易极为方便,应适当限制控制权人参与增发,并剥夺或削弱控制权人在增发中的表决权,此外,详尽及时的信息披露也必须严格执行。
[Abstract]:In recent years, it has been repeatedly exposed in the field of practice that the controlling shareholders of listed companies have emptied the listed companies through directional additional issuance, which not only greatly damages the interests of investors, but also leads to unreasonable allocation of capital funds in the capital market. It also disturbs the normal financing order of the capital market. Because of the specific nature of the object, the targeted additional issuance is often accompanied by related party transactions. With the strengthening of legislative control, in order to avoid the legal liability brought about by unfair related party transactions, In recent years, the relative transaction in the additional issuance has changed into a more covert non-related situation, so we should pay attention to judge whether the affiliated transaction is obviously a unilateral profit-making transaction. At the same time, the qualitative conclusion of unfair related party transactions is that controlling shareholders use their controlling position to infringe on the interests of listed companies and small and medium-sized investors. Due to the lack of adequate legislation in our country and the present situation of dominant shares in listed companies, It is extremely convenient for controlling shareholders and directors and executives to conspire to abuse their right to engage in unfair related transactions in the additional issue. They should appropriately restrict the controlling party's participation in the additional issue and deprive or weaken the controlling party's right to vote in the additional issue. In addition, Detailed and timely information disclosure must also be strictly enforced.
【作者单位】：南京师范大学泰州学院;复旦大学;
【分类号】：D922.287

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