Research On The Constraint Terms Of Corporation Actual Controller

According to the laws and regulations system, the corporate control in the form of theseparation of powers on decision control, execution control, supervision control of aconfiguration for the meeting of shareholders, the board of directors and the board ofsupervisors respectively. The three organs are interaction, mutual checks and balances, in theform of centralized management to control the corporate behavior. In the operation of thepower in the company practice, however, the objective existence of company actualcontrollers in a state of facts control and dominate the actions of the firm, the company poweroperation off the legal control of the track. Company actual controller which enjoy thecompany’s actual control, factual, bootstrap and individual characteristics, it is to control graband alienation. Based on the company’s actual control concept and form, the constraints on thecompany’s actual controller clause have carried on the definition, content and type. In termsof contract control with constraints based on a detailed analysis, think that due to the limitedrationality and incompleteness of contracts, contract control is difficult to reach the goal ofeffective regulation actual controllers, so the actual control restrain terms when the legalperson of establishment and improvement of the constraint clause as the main form, and putforward our country to the terms and conditions of the actual controllers legal constraints tobuild and perfect Suggestions. This paper will be divided into four parts, the full text of abouttwenty-six thousand words.PART ONE The concept for company actual control analysis, think that China’slegislation on the definition concerning the actual controllers of the company have badductility, the company shall be the actual control form as "is not the company’s controllingshareholder, but through investment relations, agreements or other arrangements, who canactually control the company’s behavior." Second, under the actual control of peopleconceptual framework of the company according to its power in different ways, the actualcontrol of people in the company generalizes the specific form of expression, thus it isconcluded that the actual control of people mainly by the agreement or the provisions of thelaws as the carrier. Finally, the actual controllers of the company constraint terms areexplicitly, meaning includes: first, defining the concept, that is, subject to the terms andconditions of the actual controller’s constraint refers to the "on the relevant regulatorydocuments or contract in order to conclude restrict or control the terms of the actual control ofpeople." Secondly, the content of the terms and conditions of the actual controller’s constraintdefinition should include actual controller terms, obligations, terms and clause prohibitedbehavior four aspects.PART TWO Constraint on the company’s actual controller, the second component ofthe terms of construction, the essay discusses the necessity of, think the necessity of theconstraint on the company’s actual controller has the following reasons: first, the actualcontrol of the company properties and factual power, dominance, bootstrap, individualcharacteristics, the results showed that to grasp the actual control of the power must beincluded in the constraint system; Secondly, the company’s actual control people bringadverse impact on the company leads to the need of the constraints; Finally, the company’sactual control the diversity of forms result in difficulty, to provide possible to escape the legal responsibility, therefore, should establish perfect constraint clause system control system forthe actual control of people. Through analyzing the necessity of actual controllers shall beconstraint, constraint clause shall build actual controller of the objective in this paper.PATR THREE On the terms and conditions of the contract the constraints on actualcontrollers were analyzed, and the first of all, think the company actual controllers forcontract on the control is not only practical product, it is based on party autonomy theory andfirm contract theory. Secondly, the practice of companies to participate in the main body of arepresentative generalizes the restraint terms, including: priority terms, anti-dilutionprovisions, convertible bonds, bet against the terms of the agreement, foreclosure terms andcommon selling terms, the towing power, the board of directors veto clause, salvo, right toknow provisions on the board of directors, etc. Finally, concluded that although the actualcontrol of people for contract constraint has a profound theoretical foundation and abundantpractical results, but given the inherent bounded rationality and the relativity of contract, thecompany actual controllers only through legal constraints in terms of construction and perfect,to achieve the purpose of effective control.PATR FOUR The idea that the construction of subject to the terms and conditions ofthe actual controllers constraints of our country should be in the form of legal constraints interms of building as the main, in terms of legal constraints to build and forms into the studyand the necessity of combing, on the basis of the following constraint clause suggestions: first,we should be clear to the terms and conditions of the actual controllers legal constraints tobuild the legislative concept; Second, it is recommended that the unified legal concept oncompany actual controller, form a coordinate system; Third, improve the company’s actualcontrollers commitments; Fourth, improve the actual controllers of prohibited behavior terms;Fifth, improve the actual controllers liability clause.