Study On The Controlling Shareholders' Fiduciary Duties

It is an important task for the corporate law scholars to find the solutions as howto regulate the controlling shareholders abusing their controlling power. According tothe corporation law legislation and practice of the whole world, it is a main tendencyto regulate the controlling shareholders abusing their controlling power byestablishing the controlling shareholders' fiduciary duties. Considering the problem ofcontrolling shareholders abusing their controlling power is also very serious in ournation, we should give an explicit statement of controllingshareholders' fiduciaryduties in the Chinese Corporate Law and supplement with related safeguardingmeasures.The main research object of this dissertation is the controlling shareholders'fiduciary duties at the agreement based acquisition. Combined with the knowledgefrom the law, sociology and economics and based on the ripe theories and practiceexperience of the developed countries, I deeply discussed the controllingshareholders' fiduciary duties by using the methods of comparative analysis, statisticanalysis and statue interpretation, but I laid stress on the agreement based acquisition.Meanwhile, by intensively referring to the newly amended Chinese Corporation Lawand Securities Law, I also discussed about the refinements of the controllingshareholders' fiduciary duties.The conclusions of this dissertation are, firstly, when we apply the controlling shareholders' fiduciary duties, the interest balance of every side and the real impactupon the nation's economic running should be primarily considered. But, to imposemore duties upon the controlling shareholders is reasonable. Secondly, before thecontrolling shareholders sell their controlling shares at an agreement based acquisition,they have the duty to reasonably investigate the buyer's acquisition purposes,management capacity and creditworthiness. Finally, reasonable corporationgovernance structure and effective legal remedies are the vital supports of thecontrolling shareholders' fiduciary duties.The Part One introduced some basic theories of fiduciary duties, which includedthe theory of agency cost, information partiality and adverse selection, and controllingshares premium. The function of this part was for the convenience of the followingdiscussion.The Part Two discussed the controlling shareholders' definition and thecontrolling shareholders' fiduciary duties. As to the definition of controllingshareholders, the legislation rationale was firstly discussed. And then the discussionfocus moved towards the related current law in effect. In this part, I also introducedthe establishment history, legal rationale and contents of the controlling shareholders'fiduciary duties. And the controlling shareholders' fiduciary duties at agreement basedacquisitions were given a detailed analysis.The Part Three explored the main determining standards and practices of thecontrolling shareholders' breaching their fiduciary duties at agreement baseacquisitions. I believed an acceptable determining standard as whether controllingshareholders breaching their fiduciary duties or not should be a one that combined thebusiness judgment rule standard with the substantial fairness standard. And the mainbreaching practices should include dishonest information disclosure, freeze-outacquisition, sale the office of corporation and usurping corporation opportunities.The Part Four talked about the refinements of the controlling shareholders'fiduciary duties. At this part, the legislation idea was firstly discussed. And then Irendered my suggestions on how to refine the controlling shareholders' fiduciaryduties, and five points were dwelled by intensively referring to the Chinese Corporation Law and Securities Law,...