An Actual Controller’s Liability To The Company’s Creditor

Actual controllers control company is a state different from the traditional controlmode in the field of company,in this state.the company controlled by others such asmembers of the board of directors except shareholders.On one hand,the appearance ofthis kind of control state provide a new mode except market transactions and enterprise organization for entrepreneurs with the,on the other hand,it provides a convenient way for Actual controllers to hollow controlled company through related party transactions or illegal guarantee and then make company system dissimilation.As more and moreentrepreneurs take this way to organize economy,the cases involved actual controllershave happened occasionally. It is difficult for us to solve those issues because of theobscure law.The thesis chose Shanghai A(group) Corp.v. Shanghai B Electric Tools Co., LTD,etc caseas a typical case involved borrowing disputes To clarify the problems in the aspects of theoryand practice through summarizing and Analyzing the disputed points of this case,and then putforward some superficial purposes.The whole text is divided into four parts as follows:The first part: introduced the basic facts and then refined the main disputed points of thiscase. I.e., how to identify an actual controller,whether the actual controllers should bear legalresponsibility,how to investigate actual controller’s legal liability.The second part: it is concluded that to use "fact control" to determine whether there is acontrol&dependency relationship between the defendants base on a comparative analysis oftwo main judgment standards to identify actual controller.The third part: analyzed whether the actual controllers should bear legal responsibilityfrom the aspect of theory and practice, and then reached a conclusion that along with theappearance of actual controller, the company’s structure suffering un-shareholders’ control,thus the actual controller’ s behavior is directly related to company organizationcharacteristic,so it is necessary to put the actual controller into the adjustment scope of thecompany law and then confirm the actual controller’s liability to the company’s creditor in thefield of company law.The fourth part: solved mainly the issue that which ways should be chosen to investigateeffectively the actual controller’s liability.In this part,three kinds of different points of view was introduced and the nature of the actual controller’s liability was revealed.On the basis ofabove,a final conclusion that investigating actual controller’liability by the way of the tortcompensation system was drew combining with the current legislative situation both here andabroad and the reality surfing in our country.