Research On Legal Person Controlling Shareholders' Factual Director Responsibility

Under the background of centralized state-owned Chinese corporate governance dominated by state-owned enterprises and family-owned enterprises,although the principle of capital majority decision can improve the efficiency of corporate governance to a certain extent,it also lays a hidden danger for the legal person controlling shareholders to use voting rights to realize control over the company.The nomination,election and removal of directors and the personal remuneration of directors depend to a large extent on capital majority decisions,which in turn are subject to legal person controlling shareholders.Shareholder-centered power distribution tendency is to enable the legal person controlling shareholder to control the company's directors by virtue of the high proportion of equity held by the company.The director's power distribution and power exercise have distinct attributes,and the personal will of director has been shareholderized.The will of the legal person controlling shareholders is implemented throughout the company's operation and management,and the directors have little power and institutional possibility to compete with the legal person controlling shareholders.The formation of the independent responsibility of directors is influenced by a certain theoretical background.Western representative democracy emphasizes that the representative is responsible to the people and is supervised by the people.The capital majority decision,the shareholder standard and the power allocation of shareholders and directors in the current corporate system are the private law manifestations of western representative democracy.In the internal relationship of the company,the corporate is regarded as shareholders' property,and the director is only an extension of the “arm” of shareholders.The directors acting as agents of shareholders shall fully safeguard the interests of shareholders in the performance of their duties.In the company's external relations,the corporate is an independent legal entity.The third party can only ask the director who is the internal staff of the company to bear the liability for damages for the business operation of intentional or gross negligence if the company cannot make up for its losses.In practice,most judicial or administrative agencies directly examine the violations and damages of controlled directors' behaviors,and less examine the subjective faults of directors in the performance of their duties and whether they make independent judgments.It makes it impossible for controlled directors to claim their responsibilities to be alleviated or exempted through a defense mechanism.According to the current system,there is almost no room for change in the company's articles of association for the content of directors' obligations under the law.With the development of modern companies,the content of the director's obligations and the scope of the objects are gradually expanding,but director's powers are exercised by the legal person controlling shareholders.The inconsistency of powers and responsibilities does not conform to the basic principles of the accountability mechanism.Corporate governance should not blindly emphasize the independence of directors' responsibilities,but should truly meet market needs and solve practical problems.Under the current system,the possibility of pursuing legal person controlling shareholders' factual director responsibility is the actual controller responsibility.Due to the uncertainty of the concept of the actual controller and the lack of the defense mechanism of the directors,it is difficult for this regulation to really pursue the director's responsibility of legal person controlling shareholders.Other shareholders can only ask their nominal agent,the controlled director,to assume liability for compensation,and it is difficult to require the legal person controlling shareholders as the actual agent to assume responsibility.Without knowing the internal operations of the company,it is very difficult for the third party to prove that the director is at fault and that his judgment is controlled by the legal person controlling shareholders.China's current system generally assumes a negative attitude towards whether a legal person can serve as a director.To investigate the director's responsibility of legal person controlling shareholders,it is necessary to first recognize the legal person's qualification as a director,and then to improve the factual control of the legal person controlling shareholders through the follow-up system improvement.When the company violates the law,the premise and basis for the directors to assume responsibility is that the directors can actually control the company's operation and management.In the case that the legal person controlling shareholders have actually exercised the director's powers,it should face up to such factual control and truly investigate the director's responsibility to the legal person controlling shareholders.Other countries and regions have certain reference significance in the system construction of legal person shareholders' director responsibility.The British company law defines directors from the perspective of functional significance,and on this basis,sets up the system of de facto directors and shadow directors.The supervisors in the German Stock Company Law are similar to those in China.It allows shareholders to enjoy the right to dispatch supervisors,making the legal relationship between shareholders and dispatched supervisors more clear.French company legislation and practice adopted the system design of the combination of nominal legal person directors and factual legal person directors.The current system can increase the protection and relief of the rights of controlled directors by setting up controlled director defense mechanism,controlled director recovery mechanism,and direct mechanism to the legal person controlling shareholders.Even,on this basis,we can further construct a legal person director system or representative director system,clarify the legal relationship between the legal person controlling shareholders and their representatives,and the two should respond to the company's responsibilities and obligations,effectively respond to the actual needs,and investigate the legal person controlling shareholders' factual director responsibility.