Studies On The Civil Liability Of Cortrolling Shareholder To The Third Party

According to the capital majority rule, controlling shareholders dominate the company and pursue the maximization of their own interests, easily abuse the control power and damage the interest of the company, other medium and small shareholders and creditors. In recent years, the vicious violative phenomena that controlling shareholders damage the legal rights and interests of the company, other medium and small shareholders repeatedly. Surveying all countries, all of the Anglo-American law system countries and civil law countries give clear definitions about controlling shareholders' credible duty and their civil liability for which disobey the credible duty should responsible in the eyes of the law. At present, our legislation give a relevant regulation about the civil liability of controlling shareholders, but it is very vague and lack of maneuverability, especially in the civil liability that the controlling shareholders to the third party.The civil liability that the controlling shareholders to the third party should be strengthened in order to protect the legal rights and interests of the other medium and small shareholders and creditors better. Therefore, this paper have a relevant discussion about the civil liability that the controlling shareholders to the third party which is made up of four parts: The duty of care that controlling shareholders to the third party;The quality of the civil liability that the controlling shareholders to the third party;The ascription principle of the civil liability and constitute requirements that the controlling shareholders to the third party;The compensation for damage that the controlling shareholders to the third party.Part 1: The duty of care that the controlling shareholders to the third party. The controlling shareholders refer to those shareholders who have control power of the company. The third party means the medium and small shareholders and creditors except controlling shareholders. The duty of care to the controlling shareholders is that they should possess the duty of care of kindhearted administrator when they handle general affairs of the company. The civil liability that the controlling shareholders to the third party is a kind of sanction for those who disobey their legal obligation.Part 2:The quality of the civil liability that the controlling shareholders to the thirdparty. Anglo-American law system countries and civil law countries give relevant definitions about the quality of the civil liability that the controlling shareholders to the third party, which consider that: the controlling shareholders abuse the control power and damage the interests of the third party should responsible for the obligation of the compensation for damage. It exists two different views about quality of the civil liability that the controlling shareholders to the third party in our own academy, namely liability for breach of contract and liability for tort. The paper agree with the latter and expatiate that: it is a kind of liability for tort which controlling shareholders bring up to the medium and small shareholders and creditors. Controlling shareholders should responsible for it.Part 3: The ascription principle of the civil liability and constitute requirements that the controlling shareholders to the third party. Free of guilt rule is in applicable to the ascription principle of controlling shareholders to the third party. Usually, the ascription principle of liability for tort is liability of fault, but general liability of fault principle go against the protection of legal rights of medium and small shareholders and creditors. The principle of obligation for presumption of fault should be adopted. Converting the onus probandi, lightening the onus probandi of the third party, protecting the legal rights of the third party better. For constitute requirements that the controlling shareholders to the third party, this paper adopt the theory of three important documents: fault, the facts of damage, and causality.Part 4: The compensation for damage that the controlling shareholders to the third party. About the compensation for damage that the controlling shareholders to the third party, compensation for direct damage and indirect damage should be included. The amount of compensation for damage is made up of those two parts. The third party can apply for judicial remedy or lodge a complaint of compensation for damage while their legal rights is damaged by controlling shareholders.