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Research On The Fiduciary Duty Of Controlling Shareholder In The Purchase Of Listed Companies

Posted on:2019-04-19Degree:MasterType:Thesis
Country:ChinaCandidate:Z Y YeFull Text:PDF
GTID:2416330596951832Subject:Law
Abstract/Summary:PDF Full Text Request
In 1998,a group of academics headed by the professor Rafael La Porta,had conducted a comparative study of the securities market in the past year,this group of scholars conducted an empirical study of the ownership structure of the larger listed companies in 27 countries with more developed market economies.The research results show that in the global context,the equity structure of listed companies is quite concentrated,while the legal system of the listed companies with dispersed ownership structures mostly protects the rights and interests of shareholders.For listed companies with concentrated ownership,the focus of corporate governance is not limited to the balance of power between the company's managers headed by directors and public investors,and it is extended to the checks and balances between controlling shareholders and small and medium shareholders.Regardless of whether a listed company's equity structure is centralized or dispersed,once the control power is concentrated on a certain shareholder,there will inevitably be abuse of control rights.How to solve the problem that abuse of control rights by controlling shareholders or actual controllers infringes on the rights and interests of small and medium shareholders has become a hot issue in modern company law.Since fiduciary duty is significant in the aspects of corporate supervision,governance,and the exercise of corporate shareholder rights,foreign legislationattaches more importance to the provisions of fiduciary duty,while China's current regulations on fiduciary duty are relatively simple,and lack of systematization of the fiduciary duty of controlling shareholders.For this purpose,this article starts with the basic theories of a listed company's acquisition of the fiduciary duty of the controlling shareholder,introduces the content of the fiduciary duty,and combines with the foreign legal system,to reflect on and evaluate the existing regulations of China's fiduciary duty against the controlling shareholder.The fiduciary duty of the controlling shareholder of our country is stipulated in order to provide more complete protection for medium and small shareholders,regulate the behavior of the controlling shareholders of listed companies in the acquisition transaction,and make the securities market transactions develop steadily and orderly.The first chapter elicited the Qixing's controlling shareholder's collective“abstention” case to elicit the controlling shareholder's unscrupulous approach to the acquisition transaction,violated the fidelity and diligence obligations of the controlling shareholder,and criticized the fact that the rights of the minority shareholders of the company were left behind as innocent people.This leads to the lack of fiduciary duty of the controlling shareholder in the securities market.This is the key reason for the loss of minority shareholders.Then it clarifies the normative control from the perspective of the law's fairness and justice value pursuit,the principle of good faith and public order and good publicity,and the principle of shareholder equality to show the importance of the fiduciary duty of shareholders to protect the interests of small and medium shareholders,followed by the introduction of the foundation of fiduciary obligations-the theory of fiduciary duty,and a brief description of the development of fiduciary duty in judicial practice in the United States.The second chapter focuses on the content of the obligation of observing the fiduciary duty of the controlling shareholder.It introduces the details of the duty of care,and analyzes the carefulness of the duty of care in the purchase transaction of the listed company in detail through the combination of basic theory and practice analysis.Once again,this article outlines the merits and drawbacks of the existing obligationsin the current law by observing the provisions in our current law regarding the duty of care,recognizing that our country's legislation has a duty of careful investigation of the controlling shareholders and penalties for information disclosure obligations.The strengthening also pointed out that China's legislation lacks the regret for the information quality measurement standards for information disclosure obligations in the duty of care.The third chapter mainly analyzes the fiduciary duties of the controlling shareholder's fiduciary duty,introduces the details of the duty of care,and analyzes in detail the combination of basic theory and practical analysis.Exclude the obligations of minority shareholders,prohibit the seizure of corporate opportunities,and prohibit the sole obligation to sell the company.Again,this article lists the shortcomings of the current law in respect of the obligations of loyalty by listing the provisions of the existing law in China on the duty of loyalty,mainly focusing on the provisions of loyalty obligations that are too principled to result in poor implementation and loyal obligations to controlling shareholders.The fourth chapter lists the controlling shareholders' duty of care and the criteria for loyalty obligation,and combines the internal and external regulations for the liability of the controlling shareholder's fiduciary duty in the acquisition transaction.Referring to its related perfect system,it put forward a number of proposals for improvement to our country's legislature,with a view to establishing a clear imputation method for violating obligations,strengthening penalties for violations of information disclosure obligations,and even introducing remedy measures for controlling premiums in US justice.Hope these advices will strengthen the strength of the controlling shareholder's breach of trust and weaken the motivation of the controlling shareholder to violate the obligations of the faith,and provide perfect ideas for the protection of minority shareholders' legitimate rights and interests in the acquisition transaction.
Keywords/Search Tags:controlling shareholders, fiduciary duty, protection
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