The Research On The Fiduciary Duty Of The Controlling Shareholders Of Target Company In Takeover Of Listed Companies

At the beginning of 20C., U.S.A. firstly found the system of fiduciary duty of the controlling shareholders of target company, consistent of faithful duty and trust duty. In 1940', this theory was applied to the field of takeover of listed companies. This system makes great role in protect the cooperation's interests and other minor shareholders'interests and rights. After entering 1990s', in the countries of mature securities market such as U.S.A , the theory of the system of fiduciary duty of the controlling shareholders of target company made rapid progress in the protection of the cooperation's interests and the other minor shareholders'interests and rights and controlling shareholders'interests.In recent years, all kinds of takeover of listed companies have been emerging in China's securities market. In the course of takeovers, there appeared large amount of cases of the controlling shareholders harming the company'interests and the other minor shareholders'interests and rights by disusing their controlling right. In legislation, firstly ruled fiduciary duty of the controlling shareholders ,which is not practical. The new and the new adds the stipulation of it , but it has not specific, definite stipulation. Therefore, it's a must to improve legislation of fiduciary duty of the controlling shareholders in takeover of listed companies.The ways of China's takeover of listed companies are mainly takeover by offer and takeover by agreement. we should, according to the ways of takeover, define the role and actions of the controlling shareholders of target company to stipulate the concrete content of the fiduciary duty of the controlling shareholders of target company: trust duty consists of proper investigation duty and information disclosure duty; faithful duty mainly includes restriction of interrelated deal and forbidding the cooperate action with impure motives in takeover by agreement , forbidding squeeze—out takeover with evil will and forbidding the controlling right in unfairly high price.Stipulating the corresponding civil law regulation to the controlling shareholders'violation to the fiduciary duty is the valid legal guarantee to the cooperation's interests and other minor shareholders'interests and rights, mainly in two ways: precautionary system and the system after violation.