On Restraining And Regulating Controlling Shareholders Abusing Power Of Controlling Company

Controlling shareholders exercising control over the company has its positive significance,but owing to the widespread existence of right conflict and power abuse phenomenon, the law rules and regulations research for controlling shareholders'company control power has important meaning regardless for theories perfect still practice operations to all. Actually, on the one hand because the excessive concentration of our equity structure brings a convenient condition for controlling shareholders abusing controlling power to violate the benefits of company, minority shareholders and company creditors; on the other hand, abusing power cost less under the imperfect situation of the law rules and regulations causes the phenomenon of controlling shareholders abusing power occurring frequently. Because the lately- carried out company law on January 1, 2006 established some principle items to rule and regulate the shareholder exercising the company control power, this text try to carry on a discussion to the rules and regulations problem of controlling shareholders'power under the new legislative background.This text with control shareholder for main line, adopts research methods of combining theory with practice, comparative jurisprudence, science of law economic, learns from foreign legislation and combines the advanced legislative measures with China's specific conditions to put forward own views in an attempt to improve China's legal system of socialist market economy and to build a modest contribution to the rule of law.This text is divided into four chapters, and summarized as follows: Chapter I outlines the issues about controlling shareholders. First discriminating what are the control power, the control interest, and the creation of control power, followed by an analysis of the differentiation between the meaning of controlling shareholders in this text and the concept of majority shareholders, actual controller in the new company law, on this basis, from the theoretical and practical point, the text argues that shareholders exercise control power has the rationality, and the status of abuse of control power, thus leading to the problem of regulating controlling shareholders'power.Chapter II deals with the theoretical basis and practical significance of regulating controlling shareholders. The author systematically analyzes the jurisprudence basis for regulating controlling shareholders from the jurisprudence philosophy of law about rights and obligations, formal justice and substantial justice relationship , on the law economics perspective of reducing costs and increasing efficiency, in view of the civil law theory about public interest, prohibition of abuse of power, principle of honesty and good faith, the company law theory about equal shareholders and equal equity principle, company contracts theory, and then makes up the practical significance of regulating controlling shareholders.Chapter III evaluates the legislative model in other countries and regions on regulating controlling shareholders abusing power. With method of comparative law, first the text analyzes foreign legislative measures on controlling shareholders'power as the fiduciary duty of controlling shareholders, restraining voting right, granting cumulative voting right and consulting right, selecting inspector right to minority shareholders for preventing controlling shareholders'abusing power, secondly evaluates the relief measures, due to controlling shareholders'infringement, as direct action, derivative action, the appraisal right of dissenters, finally analyzes the civil liability of controlling shareholders to company, minority shareholders and company creditors, then makes an evaluation of theses measures.On the basis of analysis and research of preceding three chapters, in the light of advanced legislative experiences in other nations and regions, integrating our new company law, the chapter IV makes specific legislative proposals to improve our regulatory system of controlling shareholder abusing power. First of all, from the perspective of the balance of rights and powers within the company, the text puts forward some views such as improving the good faith obligation of shareholders in our new company law and improving shareholder voting exceptional mechanism, enhancing shareholder inspection rights, establishing right of appraisal of dissenters to regulate controlling shareholders, secondly integrating the new Company Law, makes some proposals about direct action, derivative action of shareholders, and the appraisal of dissenters, finally tries to make a system of controlling shareholders'civil liabilities including constituent elements of abusing company controlling power, liabilities to company, minority shareholders, company creditors.Finally what should point out is that this writing is on the premise of recognizing the legitimacy of controlling shareholders exercising lawfully control over the company, seeking appropriate restraining mechanisms of regulating controlling shareholders due to the tendency and the reality of abuse of its control power over company, aiming at keeping controlling shareholders'power operation in the legal boundaries and protecting the benefits of company, minority shareholders, company creditors, eventually achieving promoting economic development, increasing social wealth.