| Recent control contests draw extensive attention to the problem of sidelined control which is very incidental for the founders in corporate finance.The traditional company law theory and "One share one right" principle in the company law of our country cause an unbalanced corporate governance structure,which makes it more difficult to protect the founder’s legitimate rights and interests compared to the investor and management.Therefore,the research on protecting the company founder’s control power is of great theoretical and practical significance.Firstly,by researching the essential theories like the definition,nature,implementation path,configuration and contention of the control power,the substance of control power is defined to be the juridical status of controlling the company affairs based on occupying the company shareholding and voting right.For the sake of interest,the interest subjects of the company will fight for control power,whose key is the distribution of voting rights.Secondly,the necessity and rationality of the control maintenance for company founders are demonstrated respectively.Facing the realistic dilemma of pursuing enterprise development and holding the controlling position,as well as the root conflict of ideas and interests with the outside investors,the control rights fighting will be irremovable,and the contradiction is aggravated by the absence of our legal system and the immaturity of the capital market.There is an urgent realistic demand and great social significance to protect the control rights of the company founders.For the contradiction with the traditional theory of corporate law which insists the symmetric configuration of voting rights,the protection of founder’s control rights has been questioned in terms of efficiency,equity,shareholder equality,policy risk and so on.However,these questions have not been confirmed in empirical studies and seem able to be refuted in theory.Under the knowledge economy,the reflections on the concept of capital power,the corporate contract theory,theory of shareholder’s heterogeneity and the separation of equity rights have been powerful supports to the rationality of building the control protection system,which is also proved to be the rational existence of the market choice by the long-term business practice.Thirdly,five implementation paths of control maintenance are analyzed and summarized in this paper,including the equity control chain,internal governance mechanism,anti-takeover measures,social capital control chain and administrative jurisdiction.Via the legal and empirical research on several typical paths of control maintenance in our country,represented by the pyramidal shareholding structure,making it clear that most paths have not got a clear recognition in Chinese law,and here comes an institutional application dilemma.Finally,a new path of the dual class share structure is introduced for the control maintenance of the company’s founder.By the comparative study of the law of the United States,Japan and Hongkong,it is concluded that we should learn from the more conservative and prudent regulation style,and apply it in China under a stronger legal restriction,market supervision and information disclosure.At the same time,for achieving the interests balance in system construction,it is important to prevent the abuse of control by the founder,confirm the border of control maintenance and strengthen the protection of legitimate rights and interests of small and medium shareholders. |
