关 键 词 :董事自我交易 公平标准 信任标准 关联交易 监事会代理公司学科分类:法学--法学其他学科
基于董事自我交易的属性,相关的法律规定旨在解决公司与董事之间的“信任”问题,这也将成为司法实践中的重要原则和标准。在“信任”判断原则下,可以通过符合公平标准的多种方式使董事自我交易合法有效。以取得非利害关系董事同意的方式使交易有效的,应当满足2/3特别多数决,其是否进行公平性司法审查属于法官自由裁量的范围。以取得股东会同意使交易有效的,不应当排除非利害关系股东,但可以通过程序要求和效力限制使其满足“信任标准”。监事会代理公司进行交易制度优越便捷,但也存在弊端,需要进一步探究。公司利益是否受到损害应当成为判断董事自我交易的前提。证明交易公平的方式主要分三步走,所失与所得相等,符合公司经营目的,有第三人愿以同等价格交易,并辅之以程序正义。
Based on the attributes of director self-dealing, the relevant legal regulations aim to address the issue of “trust” between the company and directors, which will also become an important principle and standard in judicial practice. Under the principle of “trust,” director self-dealing can be made legally valid through various ways that comply with fair standards. If the transaction is made effective by obtaining the consent of disinterested directors, it should meet the requirement of a two-thirds majority vote, and whether it undergoes judicial review for fairness falls within the discretion of the judge. If the transaction is made effective by obtaining the approval of shareholders, it should not exclude disinterested shareholders, but it can impose procedural requirements and enforceability limitations to meet the “trust standard.” The system of the supervisory board acting on behalf of the company in conducting transactions has advantages in terms of efficiency and convenience, but it also has drawbacks that need further exploration. It should be a prerequisite to determine director self-dealing whether the company’s interests are harmed. The ways to prove the fairness of the transaction mainly include the following three steps: equal loss and gain, compatibility with the company’s operational purposes, a third party willing to transact at the same price, and accompanied by procedural justice.