The Holding Company Abuse Of Control Over The Legallimit

At present the company increasing scale, collectivization, the development trend of globalization. Holding company became the most typical representative. A holding company to control other companies for the purpose of the establishment of the company, is the stock holders and managers, not directly engage in business activities. Company’s control power is a contains rich content to the right, it is all right to link. Control rights has two sides, it can not only to control the subject of the right to bring the overall interests of ascension, and is very easy to be right subject to abuse, serious enroach on subordinate company and the creditors and other shareholders, resulting in the company the benefit unbalance between the main parties, especially in the group of companies, the scale of development today, the a phenomenon is outstanding. Therefore, the rational allocation of corporate control and proper exercise in modern company system has play a decisive role role. For the holding of the abuse of corporate control rights should be strictly limited, a security holding legitimate exercise of the corporate control rights, the realization of social fairness, justice value.The full text is divided into four chapters. The first chapter through to the Chinese and foreign jurists on the holding company definition, the basic features of abstract holding company. I think a holding company to control other companies for the purpose of the establishment of the company, is company ownership and management command. Corporate control is the control status in control to subordinate all resources has dominant effect, and enjoy the exclusive interests. Control power has its rationality, should be protected by law. But as a result of company equity dispersing and internal rights division, in order to balance the interests of all parties, when the company control right abuse, legal restrictions to appear important all the more.In the second chapter, holding responsibility for the foundation, summarizes the current representative of Germany, Japan, the United States to holding company legal restrictions. Comparison of balance of interests priority mode and market order priority model similarities and differences. Among them, to Germany as the representative of the balance of interests priority mode according to the holding company holding means to distinguish the different responsibility and legal restrictions, also known as" dual mode", this mode has the characteristics of strict laws, refinement, has the very strong practical operation; as the representative of the United States market order priority mode at piercing the corporate veil as the center, to respect the laws of the market play a role, mainly through case law to form flexible legal restriction patterns. Two models are suitable for economic developments of our country and legal tradition, in our company law has certain reference significance.The third chapter is the holding company controlling right and the status of the relevant legislation. Holding company mainly through abuse of voting rights to become affiliated subsidiary company, such as making is not conducive to the subsidiary company, kidnapping resolution of board of directors of the subsidiary company, the articles of association of the company, to modify by not even bargain plunder subordinate company interests; in more serious cases, is associated with management over control of the company the right to come to a deadlock of corporate governance. Then to our country at present on the holding company can apply the law to comb, and sums up some shortcomings.The last chapter is the holding company abuse the control power and the limitation of law related suggestions. I think first of all, should be holding company incorporated company law adjusting object, expressly holding company and its related rights, such as the need to set a special chapter provides control over the content, the holding company law. Improve the holding company to exclude the voting right, Germany to introduce the" limit exceed the company’s total issued shares a certain proportion of shareholders exercise the voting principle", to determine the standard of China, expanding the applicable scope, and a clear violation of challenge system of voting power law chafing dish. Specification of subordinate company management, board of supervisors of the authority, the holding company abuse the control power and internal restriction mechanism of effective. Improve the holding company information disclosure obligations and legal relief mechanism, for the infringement provided full and comprehensive legal protection. In the company’s external form effective right check and balance mechanism, and the internal mechanism of corporate governance and complement each other, together constitute the control rights standard system.