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The Research On The Fiduciary Duty Of The Controlling Shareholders

Posted on:2014-01-23Degree:MasterType:Thesis
Country:ChinaCandidate:S M WangFull Text:PDF
GTID:2246330395994112Subject:Civil and Commercial Law
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Early company law theory is mainly based on capital control to define thenumber of control shareholders, however, with increasing co., LTD., in particularpublic shareholding company equity diversification, most countries graduallyabandoned the objective criteria, decision criteria and tend to be substantial. Becausethe control shareholder owns a majority stake in the company of affiliation absoluteor relative, makes the controlling shareholders in fact control company, obtained thecompany control of the shareholders, not only can make use of their advantageposition to the company’s production and business operation activities exertingsubstantial influence, and can through voting mechanism to determine thecomposition of the board of directors and its members, manipulation of the company’sspecific operations, can even increase according to their own will for the company’swill, make the company become a tool for selfish interests. In the face of suchbehavior, if there is no a set of effective constraint of legal system, will seriously hurtand the company, the interests of minority shareholders and creditors.Therefore, in this paper, the problem of controlling shareholders faith obligationsrelated research. In this paper, the controlling shareholders faith obligation researchmainly includes the following three parts: controlling shareholders faith obligationsof general theory, the classification of the controlling shareholders faith obligationsand content, the controlling shareholders in violation of the faith judgment standardand the controlling shareholders in violation of the Lutheran obligations of legalresponsibility.In the first part of the article, the author first of all, what is a controllingshareholder is identified and analyzed with theory of positive and negative benefits ofcontrolling shareholders. Of controlling shareholder has decided that should becombined with the specific case by judge, considering the related factors and theirdiscretion to judge. Then, the author from the positive and negative two aspects ofcontrol system of dialectical analysis of the value for shareholders. Secondly, theauthor from the faith and faith of obligations and the relationship between the two aspects of capital majority of controlling shareholders faith obligations are detaileddescribed. Faith obligations first appeared in the concept of trust law, then graduallybe applied areas of company law. In addition, the principle of capital majorityalienation has become another cause of controlling shareholders abuse their control.For the second part of the controlling shareholders faith obligation classificationand concrete contents, the author analyzed as follows: first, from two aspects:contents and objects of faith obligations has carried on the classification ofcontrolling shareholders. From the Angle of the content classification, can be dividedinto the duty of care and duty of loyalty. From the perspective of object classification,can be divided into faith obligations to the company, to other faith obligation ofshareholders and other stakeholders faith obligations. Second, the controllingshareholders of faith duty mainly includes the following aspects of content, thecontrolling shareholders in self transaction faith obligations, controlling shareholdersfaith obligations in the transfer of control, and continuous disclosure obligations.The article third part for the control of shareholders’ breach of faith obligationscriterion and forms. To determine a universal and effective criteria to judge whetherthe controlling shareholders implemented some abuse of control behavior, is aviolation of the Lutheran obligations, comprehensive national legislation andjurisprudence, which can be roughly summed up as "substantial justice","legalprocedure","interests damage" standard. Secondly, the author of controllingshareholders in violation of the Lutheran obligations summarizes and summary, theform of the unfair related party transactions, malicious control three convenienttransfer and manipulation of information disclosure.The article fourth part for controlling shareholders in violation of the Lutheranobligations of legal responsibility. This article from the imputation principle, liabilitynature, responsibility, accountability object and form four aspects of the controlshareholders’ legal liability of breach faith and concrete is discussed.
Keywords/Search Tags:Controllingshareholders, Fiduciary Duty, Minority Shareholders, Interests to Protect
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