【作者】 蔡桂荣；

【导师】 刘文静；

【作者基本信息】 暨南大学 ， 民商法学， 2008， 硕士

【摘要】 本文探讨国企整体上市交易的公平性问题。文章认为,国企整体上市是实现国企市场化的改革最重要方式和途径,有其正当性、合理性和重要的现实意义。但是,国企整体上市交易的性质是关联交易,同其它关联交易一样,容易出现不公平交易的现象。事实上,非公允关联交易常常发生,并且规模大、形式多、内容复杂。作者在对上述不公平现象的法律意义进行分析的基础上,结合工作实践分析其成因和危害后果。本文认为,国企整体上市的改革模式诞生时间短,理论论证不足,围饶这一模式的相关立法和监管制度不完善,加上整体上市交易各方的地位实际上的不平等,以及国企尚存有“官场文化”的负面影响,不公平交易的现象难以避免。国企整体上市不公平现象的出现,损害公平、公开、公正交易原则和诚实信用原则,损害了中小股东的利益和国企股东的权益,侵害了证券市场的秩序,影响了国企改革的进展。在此基础上,本文主张必须采取措施,加强和完善对国企整体上市交易的法律规范,在来不及增加《公司法》、《证券法》相关内容的情况下,尽可能加大对国企整体上市交易的政府立法、监管部门立法、行业规章立法。针对国企整体上市关联交易的特点,在规范公平定价程序,加大监管力度,建立非公允关联交易责任认定和法律救济措施等方面,制订切实可行的行政法规,供进行整体上市交易各当事人依照执行,使国企整体上市交易工作有法可依,实现法律公平和市场公平的目的。更多还原

【Abstract】 This paper mainly discusses the fairness problem of holistic listing of the State-owned enterprises. It clarified holistic listing of the State-owned enterprises is the most important ways and means to achieve a market-oriented reform of state-owned enterprises, it have its fairly, reasonable & important meaning. But holistic listing of the State-owned enterprises is the related party transactions, the unfair trade is easy to happen as the other related party transactions. In fact, the listed unfair related party transactions often happen, with large-scale, multi-form and complicated content. Combining the working experience, the author analyses the the causes and consequences of hazards based on the analysis of the unfair phenomenon from the aspect of law. This paper point out that holistic listing of the State-owned enterprises was born in a short time, with theoretical proving inadequate and the relevant legislative and the imperfect of regulatory system, with the real unfairness of the status of holistic listing of the parties in the transaction, and also the remaining "bureaucratic culture" in state-owned enterprises, so the unfair phenomenon is unavoidable. And the appearance of the unfair phenomenon of holistic listing of the State-owned enterprises ruins the trading principle of impartiality, open, justness and also the principle of honesty and credibility, moreover, it damaged the interests of small shareholders and the interests of shareholders of state-owned enterprises, and violate the order of the securities market, block the reform of state-owned enterprises progress. On this basis, the paper advocated measures must be taken to strengthen and improve holistic listing of the State-owned enterprises. Though there was no time to increase the "Company Law", "Securities Act" relevant content circumstances, as far as possible, increase holistic listing of the State-owned enterprises on the government legislation, regulatory sectoral legislation, industrial regulations legislation. In allusion to the characteristics of the related party transactions of holistic listing of the State-owned enterprises, the practical administrative rules and regulations, which should be made in the aspects of the regulation of impartial pricing procedures, the strengthen of the extent of supervision, the taking of the unfair associated trade responsibilitie’s ensurement and law relief measures, could be implemented by the listed parties for trade, so that holistic listing of the State-owned enterprises have the law to abide by to achieve the purposes for a fair law and equal market.更多还原