On Controlling Shareholders' Fiduciary Duty To Minority Shareholders

For the purpose of safeguarding interests of the minority shareholders and preventing the abuse of voting power of the controlling shareholder, a mechanism as corporate fiduciary duty imposed on the controlling shareholder has been established to some extent by main market economy country either through case law or legislation. The Chinese Company Law as amended in 2005 has made some breakthrough with respect of strengthening the interests of the minority shareholders, nevertheless, it does not shed lights on fiduciary duty imposed on the controlling shareholder of the company.Firstly, this thesis intends to explore the theoretical basis of corporate fiduciary duty of the controlling shareholder by studying the development of such principle in the corporation domain. After studying the definition and scope of the controlling shareholder, this article sets forth two basic contents of fiduciary duty imposed on the controlling shareholder: duty of care and loyalty.Secondly, this article emphasizes on three applications with regard the fiduciary duty of the controlling shareholder and interests of the minority shareholders. A: the duty of self-dealing on fair terms. Most market economy company law have regulation pertain to the self-dealing issues, since self-dealing has become the prominent methods of infringing the interests of the minority shareholders by the controlling shareholder. This part of the thesis intends to create an exercisable criterion to regulate the self-dealing between the controlling shareholder and the company, through discussing the basic rules with regard the judgment of fairness and rules of burden of proof during the judicial review. B: duty of non-competition. This part of article reviews the tendency of shifting the duty from the managers to the controlling shareholder, and puts forward the basic structure of the self-dealing transaction of the controlling shareholder. C: duty of non-usurpation of corporate opportunity. This part of the article discusses the mechanism of corporate opportunity and introduction of such mechanism into the civil law system by differentiating the rules concerning the corporate opportunity and non-competition.Thirdly, the thesis makes comments on this country's current company legislation with regard the duty of the controlling shareholder. In this part of the article, the thesis also discusses the necessity and feasibility for such mechanism to be introduced into the company legislation and puts forward some suggestions and advices in this respect.Since the conformation of the share structure and mechanism of fiduciary duty imposed on the controlling shareholder are still premature in this country's company legislation, the importance to regulate the controlling shareholder is far more pressing than any other country or region. It is important to endue more power into the minority shareholders in order to secure their interests in the company, but it will be much more effective to channel off and regulate corporate conducts of the controlling shareholder. Therefore, it will be an appropriate consideration to introduce such mechanism as fiduciary duty for the controlling shareholder into the current company legislation.