欧陆上市公司关联交易治理机制比较

上市公司关联交易治理重点因股权结构而异,英美等少数股权分散国家为管理层,包括我国在内的多数股权集中国家则为控制股东。鉴于控制股东所主导的关联交易具有利益冲突与经营效率的双重属性,欧陆国家的法律对其采取兴利除弊的治理策略。通过董事会和监事会审批机制确保决策效率,依靠司法任命特别检查人和派生诉讼机制维护少数股东权益,在公司集团中引入特别规则以提升公司价值,实现了公平与效率的动态平衡,值得我国借鉴。

A Comparative Study on Governance of Related Party Transactions in Continental European Countries

The focus of related party transactions （RPT） governance differs with different ownership structures. In countries with dispersed ownership like UK and US, the focus is the management, while in countries with concentrated ownership structure such as China, the governance focuses on controlling share- holders. RPT directed by controlling shareholders bears a dual nature of conflict of interest and operation effi- ciency, which entails Continental European countries to adopt corresponding strategies to promote the advanta- ges and to eliminate the disadvantages. Specifically, approval by the board of directors or supervisors can en- sure efficiency. The special auditor upon judicial appointment and derivative lawsuits can protect interests of minority shareholders. Moreover, in corporate groups, special rules are formulated to promote the corporate value. All the efforts aim to keep a dynamic balance of fairness and efficiency, which will be a good reference for our country＇ s legal practice.