Study On The Fiduciary Duty Of Controlling Shareholder In The Transactions Of Control On Listed Company

With the gradual development of China’s capital market, the "listed company" called "shell resources" has gradually become an important resource in the capital market. More and more companies aware that using "shell resource" to listhas not only simple procedures, but also lower cost, shorter time, the success rate higher, so thatthe transactions of control on listed company become more and more frequent. However,becausethere still is the single-large shareholder in listed companies in our country, control of the company is still in the hands of a few people, and our country’s listed company control right legal regulation is not perfect, the transactions of control on listed company in our country is always accompanied by damage to the listed company and its non-controlling shareholders by the controlling shareholder. Therefore, how to provide the fiduciary duty of controlling shareholder in the transactions of control on listed company is one of the most important topics in the field of company law in China.From the perspective of the transactions of control on listed company and relying on the theoretical basis of fiduciary duty of controlling shareholder,this article does content analysis and practice analysison the fiduciary duty of controlling shareholder and has introspection of the fiduciary duty of controlling shareholder in our country to put forward the legislative proposal about how to strengthen the fiduciary duty of controlling shareholder in the transactions of control on listed company.This article is divided into four parts. The first part is to clarify the legal basis of the controlling shareholder fiduciary duty. On the basis of the principal-agent theory, the agents of the shareholders that the management should bear the fiduciary duty. But because the controlling shareholders in the listed company held control of position, which can directly or indirectly control the personnel, management and other important matters in company, and control and dominate the company’s operations. The controlling is a foundation of the fiduciary duty of controlling shareholder.The second part is analysisthe specific content about the fiduciary duty of controlling shareholder in the transactions of control on listed company. I discuss the duty of care and duty of loyalty from two aspects of the basic connotation and specific performance. The specific performance in the duty of care in the transactions of control on listed companyisthe dutyof reasonable and prudent investigation, and the specific performance in the duty of loyalty in the transactions of control on listed companyis the duty of information disclosure and the duty of reasonable sharing the control premium. I also discusses the above three specific duty from three aspects: the basic content, the legal principle analysis and the practical analysis, which provides the reference for our country’s application.The third part is the situation analysis on the fiduciary duty of controlling shareholder in the transactions of control on listed company in our country. Firstly, I summarize three cases on the violation of fiduciary duty: the selling of the right of control in bad faith, information on the transactions of control disclosure defects, unreasonable control premium acquisition. According to that, I summarize the problems of China’s current legal regulation to point out the idea for the following proposed legislation countermeasures.The fourth part is to put forward the legislative proposalon the fiduciary duty of controlling shareholder in the transactions of control on listed company in our country. Firstly,I suggest that the law should clearly define the fiduciary duty of the controlling shareholder; secondly, I put forward some relevant ideas about the preventing the controlling shareholders in violation of fiduciary duty beforehand and afterward remedy.