I. Introduction

With the trend of world economic integration and financial globalization, China's capital market is gradually developing towards internationalization, and more and more foreign investors and a large amount of funds are pouring into China market. At the same time, domestic investors have turned their strategic investment eyes to the international capital market. At this time, China's capital market is facing a good opportunity of strategic transformation. With the strategic transformation of China's capital market, how to build a legal system of capital market that can not only promote market innovation and strategic transformation, but also effectively control risks and give consideration to fairness and efficiency has always been a major proposition. This paper intends to discuss this issue in order to benefit the legal construction of China's capital market.

Second, build a legal system that adapts to the reform of the capital market.

China's capital market has become one of the world's multipolar financial centers, and the realization of its strategic objectives depends on its three major transformations, namely, the adjustment of listed company structure and listed resources, the adjustment of market structure and asset structure, and the adjustment of capital structure and investor structure. The realization of the above three strategic changes must be based on the reform of the legal rules system of China's capital market.

The reform of the legal rules system to adapt to the background of the strategic transformation of China's capital market should at least include the following four aspects:

First, the further improvement of the company law. The perfection of China's company law mainly includes reducing government regulation, strengthening market supervision, encouraging company autonomy, improving governance structure and improving the protection mechanism of shareholders' rights and interests. And should be gradually in line with international standards. Although the Company Law, which came into effect on June 65438+1 October1,2006, has made some progress in the above aspects, it still needs to be further improved. The main manifestations are: state-owned enterprises, foreign-funded enterprises and private enterprises still receive different treatment; The civil liability for protecting the rights and interests of investors cannot be fully implemented; The issuance of company shares and bonds is still restricted.

Second, build a legal system suitable for large-scale securities issuance. The expansion of the capital market is a necessary condition to realize the strategic transformation. However, the original securities issuance rules in China's capital market are in line with the characteristics of small market and small circulation, and the issuance efficiency is low, so it is difficult to meet the requirements of large-scale securities issuance. Therefore, we should completely change the original system of securities issuance rules, gradually learn from the experience of mature international markets, and establish the legal rules of "public offering plus private placement" in line with the requirements of large-scale securities issuance in order to effectively reduce financing costs and regulatory costs and reduce the degree of information asymmetry between issuers and investors.

Third, promote the reform of China's securities trading system. The securities trading system has always been of fundamental significance in the development of the whole securities market. It not only determines the scale, price level and rules of securities trading in the securities issuance market, but also determines the concept of the whole market. China's securities trading system has long been dominated by on-site trading, centralized bidding and spot trading. This single trading system makes it difficult for the stock market to play the role of market mechanism, and the traces of artificial manipulation are obvious. The newly revised Securities Law no longer requires single centralized bidding, single spot trading and single floor trading, which has lifted the institutional shackles that seriously restrict the development of China's securities market. The future changes in the securities trading system mainly include: changing the single main board market into a multi-level trading market system, changing the single bidding trading system into a variety of trading systems, and changing the single spot trading into a variety of trading systems [1].

Fourth, the legal system construction of capital market internationalization. The internationalization of the capital market is not only the complete opening of the market, but more importantly, the system of market rules is in line with international practices. At present, RMB has not been fully convertible in capital account, so it is unrealistic to formulate a large-scale legal system to promote the internationalization of capital market. However, with the gradual realization of full convertibility of RMB in the future, we should strive to promote the unification of domestic and foreign tax laws and the international integration of securities trading systems, and finally realize the internationalization of investment and financing behavior and legal rules system in China's capital market.

Third, the construction and improvement of the legal system of the capital market by the Company Law.

The Company Law of People's Republic of China (PRC) (hereinafter referred to as the Company Law), which was passed on June 27th, 2005 and came into force on June 27th, 2006, made important amendments and supplements to the original Company Law. Great progress has been made in company establishment, company capital system, corporate governance structure, improving internal audit, highlighting shareholders' right to speak and litigation, and protecting investors' interests, and it is gradually in line with international standards. There were 230 articles in the original company law, and now there are only 2 19 articles in the new company law. It seems that there are fewer articles, but the content is richer. Generally speaking, the main points of the revision can be summarized as follows: reducing government regulation, strengthening market supervision, encouraging company autonomy, improving governance structure and improving shareholder protection mechanism.

(1) The Company Law has made the following breakthroughs in reducing government supervision.

First, lower the threshold for company establishment. The new law has greatly lowered the minimum registered capital threshold of limited liability companies. Although for various reasons, the authorized capital system was not adopted in the end, the capital of both companies was allowed to be paid in installments without having to pay it in one lump sum. Only the initial investment of all shareholders is required to be no less than 20% of the registered capital, and the rest must be paid in full within two years, of which the investment company can pay in full within five years.

Capital system is one of the basic systems of company law, and company laws in all countries basically have a set of systematic and complete legal systems about capital. One of the main contents of the company law reform in China is the reform of the capital system. Although the legislative guiding ideology of the Company Law before this revision clearly declared to promote the development of the market economy, it paid more attention to the protection of the rights and interests of companies, shareholders and creditors and the social and economic order, showing an obvious tendency of emphasizing norms, restrictions and management while ignoring support, encouragement and guidance. Legal provisions are too rigid and mandatory, but they lack due flexibility and arbitrariness. Fundamentally speaking, the fundamental reason for the reform of the capital system is not whether the current conditions are absolutely high or whether the restrictions are absolutely strict, nor how many restrictions are simply removed, how many conditions are relaxed and how many thresholds are lowered, but why and whether it is necessary for us to impose such restrictions on the establishment of companies. In fact, capital is not the fundamental guarantee of creditors' interests and transaction security, nor is it the only guarantee. Too much emphasis on the role of capital in this respect will not only fail to protect creditors, but will also curb the public's investment demand and hinder the establishment and development of many companies and enterprises. At the same time, China's economic development level is very uneven, and there are great differences between regions and industries. For some economically underdeveloped areas and industries with low capital intensity, higher capital quotas are stipulated, which also restricts economic development to some extent.

Second, adjust the proportion and structure of capital contribution. First, industrial property rights extend to the whole intellectual property rights; Second, the restriction on the proportion of intangible property investment was abolished, but only the monetary contribution was stipulated to be not less than 30% of the registered capital. More importantly, it has fundamentally changed the legislative mode of shareholders' capital contribution, replacing the original mechanical and solidified comprehensive enumeration provisions with a flexible abstract standard "non-monetary property that can be valued in money and transferred according to law", which not only greatly expanded the scope of shareholders' capital contribution, but also made full use of various investment resources.

Third, the restrictions on foreign investment have been lifted. Article 15 of the new law stipulates that a company may invest in other enterprises, but it shall not be jointly and severally liable for the debts of the invested enterprise unless otherwise stipulated by law. Article 16 stipulates that the company's investment in other enterprises shall be decided by the board of directors, shareholders' meeting or shareholders' meeting in accordance with the company's articles of association; Where the articles of association limit the total amount of investment and the amount of individual investment, it shall not exceed the prescribed limit. Because the company's foreign investment belongs to the company's operational autonomy, it should be stipulated in the company's articles of association that there is no need to limit the proportion of investment in the company's net assets by law. (1) The company's foreign investment is no longer limited by the investment quota. A company can invest according to its own actual situation and is not bound by net assets. (2) Expand the scope of foreign investment, including not only limited liability companies and joint-stock companies, but also other forms of enterprises, partnerships and joint-stock cooperative enterprises. That is, companies are allowed to invest in non-corporate enterprises. (3) It has become a necessary clause in the articles of association to make it clear that the decision-making body for foreign investment is the shareholders' meeting or the board of directors. (4) Clarify the limited liability of the company's foreign investment. The company only bears limited liability for the investment part of the invested enterprise, and does not bear joint liability for the debts of the investment target enterprise through the arrangement of contracts and agreements.

In addition, the new company law also cancels the examination and approval procedures for the establishment of a joint stock limited company. Article 77 of the original Company Law clearly stipulates that the establishment of a joint stock limited company must be approved by the department authorized by the State Council or the provincial people's government. The new law deleted this clause. No country in the world needs the approval of the State Council or provincial (state) government to set up a joint-stock company, which restricts the development of joint-stock economy and is the biggest constraint on the development of joint-stock companies. The abolition of this provision will greatly facilitate the establishment of joint-stock companies and promote the development of joint-stock economy. At the same time, it is allowed to set up a one-person limited liability company to encourage individual entrepreneurship, promote economic development and expand employment.

(B) In strengthening market supervision, the Company Law has mainly carried out the following reforms.

Firstly, it introduces the system of corporate personality denial. Article 20 of the new "Company Law" stipulates that if a company's shareholders abuse the independent status of the company as a legal person and the limited liability of shareholders to evade debts, which seriously damages the interests of the company's creditors, they shall be jointly and severally liable for the company's debts. Drawing lessons from the precedents and legal provisions of some developed countries in the market economy and summing up the trial practice experience of the people's courts in China, in order to prevent the risk of abusing the company system and protect the interests of the company's creditors, the provisions of the corporate personality system have been added. In real life, some shareholders transfer the company's property and share the company's property with their own property. As a result, the company's property used to perform its debts has been greatly reduced, which has seriously damaged the interests of creditors. In order to protect the interests of the company's creditors, the system of "disregard of corporate personality" has been added. Of course, the application of the disregard of corporate personality, that is, the specific circumstances in which shareholders bear joint and several liability for corporate debts, such as "maliciously evading debts" and "seriously damaging the interests of corporate creditors", need to be strictly grasped by the Supreme Court and stipulated through judicial interpretation.

Second, strictly regulate related party transactions. Just as the appearance and development of affiliated enterprises have objective inevitability, so does the existence of affiliated transactions, the most important behavior of affiliated enterprises. Due to the continuous improvement and development of the concept of related enterprise or related person in the laws of various countries, the related party proposition mentioned by people today has been extremely inclusive and flexible. This concept not only summarizes the relationship between a series of enterprises with equity control and management decision control within the group enterprise, but also summarizes the relationship between enterprises with indirect control based on the kinship and interest cooperation of the controller. That is to say, among the related parties who trade with each other, some transactions actually belong to the related parties who realize that the related relationship between them is deliberately conducted based on the will of the controller, and the content of such related transactions is often deliberately unfair; Other transactions belong to related parties who do not know the relationship between them, and their transactions are not controlled by the will of the controller. In this case, the content of related party transactions may be fair. Based on this complicated reality, scholars and legislators from all over the world have actually experienced a process from simple to complex in the legal control of related party transactions, and gradually focused on the issue of fairness.

This paper holds that the objectivity and inevitability of related party transactions do not mean that they are of course fair and legal; On the contrary, this so-called "transaction" that violates the competitive conditions of market transactions may breed unfair transactions, fraud and predation. If there is no effective legal control (especially the control of fair rules), this possible unfair trade will be more and more transformed into realistic and inevitable unfair trade. Because related party transactions have the nature of concealing or concealing the contents and interests of transactions, in the absence of universal legal control mechanism, unfair related party transactions are actually in an undiscovered or uncorrected state, so it is always doubtful to assert that related party transactions can save social resources or produce "social surplus" as a whole.

Therefore, we can draw two basic conclusions: on the one hand, the existence of related party transactions is objective and inevitable, and it is impossible to simply prohibit or make it unreasonable; On the other hand, in order to ensure fair and orderly transactions, the law should create effective control rules for related party transactions on the basis of traditional legal principles.

In the current practice of company law in China, there is no business judgment rule. With the development of corporate legal system in China, especially with the development of corporate litigation practice in China, this specific corporate legal system will be established in China law sooner or later, which will help to protect the legitimate rights and interests of corporate parties reasonably and fairly.

It is obviously of great significance to establish the principle of substantive fairness in the system construction of legal sanctions against unfair related party transactions. In the process of establishing the principle of substantive fairness in China's laws, legislators and judges should consider the following basic elements: first, China's laws should provide different legal remedies for the interested parties in company litigation to meet the different interests of the parties in company litigation; Secondly, in the compensation and relief of unfair related party transactions, we must adhere to the principle of substantive fairness, but it can't meet the obvious unfair standards in traditional civil law, and we can't slip into the wrong path of lifting the veil of the company as a whole. This experience has actually been confirmed by our judicial practice; Finally, in the process of constructing the specific rules of substantive fairness principle, we must realize that the purpose of these specific rules is actually only to limit the unfair related party transactions that damage the affiliated companies due to improper influence, not to limit the normal business behavior of the affiliated companies, and not to limit the vivid and diverse corporate practices with simple and rigid legal dogma. Therefore, the specific rules of the principle of substantive fairness in China's law will certainly go through the process of simplification to complexity and continuous rationalization [2]. In addition, it is worth mentioning that the new "Company Law" has also changed greatly in defining the compensation liability of intermediaries to creditors, reducing mandatory norms and increasing arbitrary norms.

Although the company law has made great progress, there is still a gap. Mainly manifested in the fact that the "bloodline theory" of market players still exists; It is still obvious to adhere to the governance concept of government supervision first [3]; State-owned enterprises, foreign-funded enterprises and private enterprises still have different treatment according to their status; The civil liability for protecting the rights and interests of investors cannot be fully implemented; The issuance of company stocks and bonds is still restricted and so on.