Study Of Controlling Shareholders' Fiduciary Duty

Fiduciary duty originally arises from trust relationship.After entering the research area of corporation law,it is initially believed that only the managers who are entrusted by the owner of the company have fiduciary duty.With the economic development,some controlling shareholders abuse their power to infringe the rights of the company and minority shareholders.This phenomenon emerges endlessly.It is an important subject of the world company law to restrict the controlling shareholder's power and require the controlling shareholders to assume fiduciary duty under the premise of insisting on the limited liability of shareholders.However,major shareholders taking control of the company is also a widespread phenomenon in China.The imperfection of laws and regulations,the irrational ownership structure,and the neglect of controlling shareholders' obligations have made the abusement of controlling shareholders a common problem.Although the Company Law has made provisions on the prohibition of the abuse of shareholders'rights,there is still some improper connections between the specific forms of fiduciary duty including the prohibition of non-fair related transaction obligations,liquidation obligations,and prohibition of insider trading obligations.These problems restrict the effectiveness of the system.There is no doubt that requiring the controlling shareholders to assume the fiduciary duty is a breakthrough in the limited liability of the shareholders.How to construct a "comprehensive concern,exception commitment"to control the shareholders'fiduciary duty commitment system has a strong theoretical significance and realistic value.Therefore,this article is based on the theory of controlling shareholders' fiduciary duty,demonstrating the legitimacy of controlling shareholders' fiduciary duty,classifying the violations of the fiduciary duty into specific circumstances,and combining the judicial judgment to find the judgment standard of the fiduciary duty in practice.Finally,the author questioned the trend of expansion of the controlling shareholder's fiduciary duty referred in judicial interpretation,and proposed suggestions for further improvement of the fiduciary duty regulation system.Specifically,the text of this article consists of five main parts.In the first part,the liquidation obligor of Article 18 of the Judicial Interpretation of Company Law(?)induces the problem of controlling shareholders' liquidation obligations,and puts forward two questions in combination with the guidance case No.9.First,whether it is justified to require all shareholders of limited liability company to bear liquidation obligation?Second,how to define the improper performance of controlling shareholders' liquidation obligation?It is concluded that it is not necessary to separate the liquidation obligations from the joint stock company and the limited liability company.Only the controlling shareholders are required to undertake the liquidation obligation.The liquidation obligation is the concrete manifestation of the fiduciary duty in the company liquidation stage.The research significance and research methods are also introduced.The second part is a literature review.Firstly,through the introduction of the control right,the concept and types of controlling shareholders,the controlling shareholders and the legal concept of China's "Company Law",the research object of this article is clarified.Then comes the origin of the fiduciary duty and the development path of how first type of agency problem is expanded to the second type after entering the company law research.After comparing the fiduciary duty of controlling shareholders and the director's fiduciary duty,the author found out the exception and passiveness of controlling shareholders' fiduciary duty.The third part is the justification for controlling shareholders' fiduciary duty.From the perspectives of jurisprudence and law and economics,the jurisprudence begins with the theory of trust relations originating from fiduciary duty,and then combines the basic theory of civil law,and finally ends with the theory of equity equality,to demonstrate the necessity of bearing fiduciary duty.In the proof of law and economics,the concept of the private benefits of control is combined,and the private benefits of control is taken as the economic basis for controlling shareholders' fiduciary duty,which proves that there is economic consideration for the fiduciary duty.The fourth part is an analysis of the commitment of controlling shareholders'fiduciary duty in judicial practice.First of all,to solve the prerequisite question,it is proposed that there is no need to distinguish the principals of the fiduciary duty between the joint-stock company and the limited company.Only the controlling shareholders of the company bear the fiduciary duty.Secondly,the breach of fiduciary duty may be classified from three levels--the daily operation activities,the transfer of control rights,and direct infringement of small and medium-sized shareholders' interests.Combining with the specific judgment documents and the announcement of Securities Regulatory Commission to analyze and summarize the exceptions that controlling shareholders need to bear the fiduciary duty.Finally,the author summarized the criteria for controlling shareholders' fiduciary duty in judicial practice and found the logical relationship of standards between the cases.The fifth part is an improvement of the restrictive commitment and regulation system of controlling shareholders' fiduciary duty.Firstly,it is only an exception for controlling shareholders' to assume fiduciary duty.It is undoubtedly a violation of the limited liability of the shareholders to ask controlling shareholders to assume fiduciary duty.It is also doubtful that there is a magnifying trend of the fiduciary duty appearing in the judicial interpretation.Secondly from two perspectives of analysis,the system of fiduciary duty regulation is perfected One is an analysis of the improvement of the direct regulation system,that is,creating the legal concept of controlling shareholders,specifically defining the scope of integrity obligations,perfecting the voting rights exclusion system,and applying the cumulative voting system.The other is suggestions from the perspective of litigation confrontation mechanism,which include improving the litigation system,clarifying the violation of the fiduciary duty and the inclination of the burden of proof.