Research On The Improvement Of The Company's Actual Control Of Tort Liability System

With the continuous development and growth of the company,the control right in actual operation starts to deviate from the legal track,and a large number of "actual controllers of the company" appear.Although the definition of "actual controller" is defined in the company law of 2005,the concept of "actual controller" is still controversial in the theoretical circle.At present,China's "company law","securities law",securities regulatory commission guidelines,exchange guidelines and other relevant provisions on the definition of the actual controller of the company,security issues,connected transactions,prohibited acts,etc.but there are still many deficiencies.In the judicial practice,the company's actual control abuse its position control,through the possession or occupy the company's capital,false capital contribution or smoke escape capital contribution,unfair related party transactions,insider trading,illegal guarantee behavior,their benefit,and violations of the company,shareholders,creditors' rights and interests,the broad existence about the phenomena of because the relevant legal provisions and theoretical research in our country are still not ten.As a result,there are few successful cases to investigate the actual control of civil tort liability of the company in practice.At present,there are abundant research achievements on the theoretical basis for the actual controller of a company to bear civil tort liability,such as fiduciary duty theory,factual behavior theory,right and responsibility consistency theory,stakeholder theory and substantive justice theory.However,there are still many defects in the system of actual control of people's tort by Chinese companies,including: inconsistent scope of actual controller under different norms,scattered obligations,single and unclear scope of tort liability and unclear realization mechanism of tort liability.Therefore,the legislation should be improved to effectively regulate the torts of abusing the control right by the actual controller of the company.In view of this,suggested that: take "fact control" as the identification standard of the actual controller of the company,and do not limit the identity of "shareholder";The obligation of good faith of the actual controller of the company includes the obligation of information disclosure,the obligation of respecting the company's independent personality,the duty of loyalty and the duty of diligence;By makinggeneral provisions on the liability of the actual controller of the company,specifying the constitutive elements,scope of liability and mode of liability of the actual controller of the company,the general rules on the liability of the actual controller of the company are established.Distinguish between the two types of direct infringement of the interests of the company by the actual controller and the indirect infringement of the interests of shareholders and creditors.Through the exercise of the company's right of subrogation,shareholders' derivative action,the exercise of creditors' right of subrogation,and the application of the company's personality denial system,the company's actual control of the tort liability of the people can be improved.