Study On The Identification Of The Actual Controller Of The Company

As an important legal concept in the field of company law and securities law,the actual controller comes into being with the development and change of modern company system and corporate governance structure.In order to effectively regulate the behavior of the actual controller and prevent it from evading legal supervision and harming the interests of the company,shareholders and creditors,the identity of the actual controller must be identified.By reading extensively involves the company actual control,people would think the written judgment of the main problems of actual control in the company law are the definition of fuzzy,the company law adopt the description method of the third paragraph of article two hundred and sixteen instead of defining the scope or eliminate discomfort grid method to control the actual human subject scope are defined.However,in practice,it is not clear which subjects can become the actual controller,which subjects cannot become the actual controller,whether the shareholders of the company can become the actual controller or not,that is,how to define the identity of the controlling shareholder when the controlling shareholder actually controls the company.In terms of the way of actual control,the "investment relationship","agreement" and "other arrangements" are not specified in specific and detailed provisions in the law,which leads to the judge's opinion in the process of hearing the case.Therefore,this paper will define the concept of the actual controller of the company and study the specific identification rules of the actual controller.On the basis of distinguishing the connection and difference between the actual controller and the controlling shareholder,the relational party,the operator and the cold member,the concept of the company's actual controller is defined,including the subject,method,object and will of the actual control.Specifically,the subject of the actual control of the company includes the minority shareholders of the company,excluding the controlling shareholders of the company.When discussing the specific identification rules of the actual controller of the company,we should start from the main principles,specific methods,identification subjects and identification procedures of the actual controller.It is clear that the main principle of the identification of the actual controller of the company in China is the combination of the substantive standard and the dominant possibility standard.The specific method of identification takes "control right" as the core and follows "substance over form" and "commercial externalism".At the same time the comparative method is used to improve the identification subject and identification procedure of the actual controller of our company.Through the identification of the actual controller of the company,it will be exposed to the "sunshine" of regulation.Finally,the company law applies relevant systems to the identification of the actual controller,and avoids the abuse of the rights of the actual controller by unveiling the company veil system,shareholder derivative action system,corporate governance system and other related systems,so as to safeguard the legitimate rights and interests of the company,shareholders and creditors.