關係人交易之利益衝突及規範面向

關係人交易應受特別規範，係因一般非關係人交易中，交易兩造均得為自己的最大利益爭取最佳交易條件；但在關係人交易中，交易兩造可能為同一企業集團或是由公司董事代理公司與董事交易。因此，關係人交易也是利益衝突交易。本文自利益衝突角度，探討關係人交易之規範。由於完全放任說及絕對無效說均不切實際，即須探討可能之規範面向，包括實質規範、程序規範及責任規範。就關係人交易本質上具有利益衝突而言，程序規範透過揭露及本人同意解決關係人交易之利益衝突，同時提供董事等關係人進行關係人交易時，事前明確的行為準則，應有助於導正關係人交易，降低關係人交易效力的不確定性，應為我國法制可行之建置方向。

關鍵字

關係人交易；利益衝突；代理人關係；事前同意；揭露

並列摘要

There are special regulations which must be followed when completing a related party transaction. That is because an arm's length transaction is a transaction that occurs between two unrelated parties, each of whom is acting in their own self interest and therefore trying to get the best deal for themselves. However, a related-party transaction which is also called non-arm's length transaction is one that occurs between related parties, such as parent and subsidiary companies or a director and its company. Therefore, a related-party transaction cannot be assumed that the transaction is fair and is also deemed as conflicts-of-interest transaction.This article analyzes the regulations of related-party transaction from conflicts-of-interest perspective. Since Nonintervention Approach and Prohibition on Self-Dealing Approach are both not practical, it is necessary to discuss and do research on the regulative approach, including substantive regulations, procedural regulations and liabilities rules. In terms of the nature of related-party transactions, related-party transactions involve conflicts-of interest. The procedural regulation which is also called as conduct rule, property rule or majority-of-the-minority rule resolves conflicts-of interest issues by disclosure and prior consent of principal, provides a precise rule of conduct, guides related-party transactions and reduces the uncertainty and thus becomes a better regulative approach.