A Study On The Fiduciary Duty Of Controlling Shareholders

At present, in many countries and regions, the interest of minority shareholders is continuously harmed by the controlling shareholders through abusing of its control power. In this case, how to prevent the abuse of the power of control from the content and procedures of operating so as to better protect the interests of minority shareholders from abuse has become the common problem faced by the company legislation in every country. Chinese reality of"one shareholder overwhelms the others"has led to more abuse of the right of controlling shareholders endlessly. How to learn from the legal theory and practical experience of shareholders fiduciary duty in other countries is of great importance to establish the effective authority restriction mechanism and the responsibility investigating mechanism by standardizing the behavior of shareholders. This article gives the analysis of the related regulations in our country present law of corporation system from the foundational content of shareholders fiduciary duty, and further puts forward perfect proposal on the basis of analyzing world major countries system on shareholder fiduciary duty.With about 36000 words in the paper, it covers three parts: preface, body and postscript。Please find to follow detailed elaboration.Preface: Exerting fiduciary duty to the controlling shareholders has become the common practice in major countries in the world and the hot spots in law educational institutions. And in our country legal science also conduct the research separately from the perspective of comparison and real diagnosis the shareholders'fiduciary duty. This part summarizes the present research situation and the significance briefly and stresses the necessity and feasibility of perfecting our country's control over the share holder fiduciary duty in order to display its function truly in our country. Part one: Outline of shareholders'fiduciary duty. This part takes the existing research results as a foundation to analyze the elementary theory of shareholder fiduciary duty. It has experienced from the pure quantity judgment standard to the substantive control judgment standard on shareholder legal limits. This article has pointed out that we should use the substantive control judgment standard but not only from holding stocks quantity to give the limit. Through analyzing of the reason and the development of the control shareholders fiduciary duty, We know clearly the rationality that the shareholder have the attention duty and the faithful duty to the company and the minority shareholders.Part two: Inspection on legislation of fiduciary duty of controlling shareholders in some countries or areas. From controlling shareholders only have the fiduciary duty to the company to have the good faith duty to the company and the minority shareholders is a dynamic development process. Through the dynamic development and comprehensive survey of some national and the local shareholder fiduciary duty system, we find out shareholder fiduciary duty in these countries (or areas) to deepen the theoretical analysis of controls the shareholder good faith duty, and to give some help to the reference to perfect our country's controlling shareholder fiduciary duty system.Part three: The theoretical basis of fiduciary duty of the controlling shareholders. This section analyses the legitimacy of fiduciary duty of the controlling shareholders from the theoretical perspective. It has support from four aspects. Credibility is one of the characteristics of the market economy; requiring the controlling shareholders undertaking the fiduciary duty, which is the objective demand of the market economy. The principles of credibility and the prohibition of right abuse in the civil law, the principles of equality of shareholders in the company law, and the principles of uniform of authority and respond sibilate and the justice in the jurisprudence also provided the basis for the legitimacy of requiring the controlling shareholders to undertake the fiduciary duty.Part four: The legislative status, defects and the improvement of the fiduciary duty of the controlling shareholders. This part analyses the evolution of China's legislation about the regulation to the fiduciary duty of the controlling shareholders, and the legislative status. It also points out the shortcomings and the inadequacies on the basis of the judgment and the analysis of the theory of the fiduciary duty of the controlling shareholders. Learning from the foreign experiences and China's characteristics of the company system, the author give the corresponding provisions and the improving and perfecting proposals to existing legislation on the fiduciary duty to the controlling shareholders. With the view of the establishing and perfecting of the different systems, it can curb the abuse of the controlling power of the controlling shareholders effectively and ultimately provides a powerful protection to the minority shareholders.Postscript: Summarizing the gist, and the paper is over.