The Relief For Creditors When Actual Controller Abusing Relationship

This essay combine with the case, base on the company law and the relevant provisions of "contract law", to explore how can the creditors from the controlled company to protect their rights when controllers of equity relationship abuse. In addition to the introduction, this article is mainly divided into four parts:Firstly, the actual controllers. According to "company law" can be concluded that determine the actual control of three elements: the shareholders, and through the other form of equity or non-equity control and can actually govern behavior. This case B company is the actual control of company law on the people, the company law of the three conditions: not A company’s shareholders and its implementation by means of contract management agreement governs A company operation and management behavior and can determine the company’s operating according to the agreement and the appointment and removal of senior staff. Can therefore be concluded that B company is the actual control of A company.Secondly, whether the relationship abuse. First of all, the cognizance of correlation exists. "Company law" the 216 th of the associations belong to the general definition connotation, enumeration defined denotation, accompanied by an exemplary proviso of legislative technology. But what is a direct control, what is indirect control and lead to the company benefit transfer, did not do in the company law provisions in detail, so in practice that there are some difficulties. Here can be reference to the provisions of the relevant laws and regulations, such as "special tax adjustment measures(trial)" in chapter 2 of article 9, 8 with the actual situation of each relationship. According to the measures for the implementation of special tax adjustments(try out) "chapter 2 the provisions of article 9 of the A company to buy sales behavior controlled by B company, is the existence of correlation between A and B company; Second, whether the judgment constitutes abuse. Only principle stipulated in article 21 of this law clearly enough, when that still need to by the relevant regulatory documents, such as the shenzhen stock exchange, the small and medium-sized enterprise board listed companies controlling shareholders, actual controllers behavior guidelines ". The above file you can see the specific construction form of abuse relationship behavior is varied, have associated business, profit distribution, asset restructuring, foreign investment, etc., these behavior is not justification lies in its violating the principle of fair and reasonable; Finally, the applicable law is the premise of article 21 the abuse behavior caused damage as a result, also is to cause the company interests. This kind of harmful consequences must already have a certain amount to a certain degree. This article mainly discuss the unfair related transactions, B company as A company’s actual control, using its relationship with its control by selling A company to purchase goods for unfair trade itself, this behavior caused serious damage to A company’s property, endanger creditors M company creditor’s rights and the implementation of A company. Company B’s behavior conforms to the component elements of the behavior of unfair related transactions, belongs to the abuse of correlation.Thirdly, the creditor benefits. The provisions of the existing company law, the creditors, it is difficult to directly quoted company law relief but it has three other relief way. First, select the company law article 21 and subrogation contract law; Second, the choice of contract cancellation right; Third, the choice system of bankruptcy on bankruptcy fraud. The first requirement to establish controlled by actual controllers abuse that damage compensation claims, control of the company’s creditors in controlled company delayed in exercising its right of claim cases shall be exercised on his behalf; The second direct exercise the cancellation right to cancel the actual control and the control between the unfair behavior, the deficiency is to have a scheduled during restrictions and judicial interpretation, according to the contract law obviously unreasonable price to reach the level of 30%; The third kind of bankruptcy fraud system, including cancellation system and the system of invalid. Cancellation system for one year during the critical requirement, which accepts the bankruptcy petition within one year before the wrongdoing of to apply for cancellation. Although there is no time limit on the invalid system, but it applies only to the two kinds of situations, the applicable scope is very narrow. In this case, for M company creditors, the best solution is company law article 21 and subrogation relief way, because the price of the company B unfair related transactions have not reached the degree of judicial interpretation requires 30%, B company’s behavior does not belong to the critical period of 1 year, also do not belong to two kinds of invalid behavior can be filed for bankruptcy. Through the analysis of the first two of these, A company can be established for compensation for the damage to the company B, because it is controlled by B company, delayed in exercising its creditor’s rights, the creditors’ M company can, of course, to exercise the creditor’s rights of company A.Fourthly, a little inspiration come up with the case. The company law of actual controllers obligations stipulated by the imperfection. According to the company law relevant judicial explanation, actual controllers in the dissolution of liquidation and assist the shareholders only smoke escape capital contribution to directly liable to creditors. In practice, the actual control abuse cases of damage by controlling the interests of creditors, the creditors of direct reference specification directly related article 21 but unable to get effective relief. In addition to afterwards relief measures, for reference of the company law about the directors, supervisors and senior management personnel of the provisions of the rights and obligations, improve the actual control responsibility system, increase the provisions of the outside creditors bear the responsibility.