Improving the quality of listed companies is the inherent requirement of the healthy development of China’s capital market,and improving the governance level of listed companies is the foundation of improving the quality of listed companies.The shareholding structure of listed companies in China is dominated by centralized mode,and the conflict of interests between controlling shareholders and minority shareholders is the core issue of the governance of listed companies.The controlling shareholders have the de facto control but lack the corresponding obligation restraint,and the alienation of capital majority decision creates the conditions for the controlling shareholders to abuse the control,as the specific embodiment of the principle of prohibiting the abuse of rights in the company law,it is justified to require the controlling shareholders to assume the fiduciary duties.In practice,the phenomena that the controlling shareholders breach the fiduciary duties occur from time to time,such as irregular information disclosure,capital occupying,abnormal changes in rights and interests,improper related transactions,and inadequate performance of commitments,which seriously damage the interests of the companies and minority shareholders.Based on the typological analysis of the violations of fiduciary duties by controlling shareholders in practice,the deficiencies of the existing legal system are analyzed in depth.Although the legislation has tended to impose more regulations on controlling shareholders,there are still problems such as the controlling shareholders’ neglect of the independence of listed companies,unclear criteria for determining the breach of fiduciary duties by the controlling shareholders,imperfect responsibility assigning mechanism and weak supervision mechanism.The relevant legal systems of the United States,Britain,Germany and Japan can provide a lot of useful experience for China,and compared with the indirect regulation model of Japan,it is more appropriate to learn from the direct regulation and accountability model represented by the United States.Combining the legislative experience of foreign countries and the current situation of corporate governance in China,the improvement of the legal system of fiduciary duties of controlling shareholders of listed companies in China must be based on the premise of maintaining the independence of listed companies and based on clarifying the status of controlling shareholders as the subject of corporate governance,distinguishing different identities and behaviors of controlling shareholders and assigning different obligations and responsibilities.In this regard,article 191 of the Company Law(Revised Draft)has made some progress but is still insufficient.Based on the experience of American case law,China can take the principle of substantial fairness as the standard for determining the breach of duty of loyalty and the business judgment rule as the standard for determining the breach of duty of care.Based on the consideration of increasing the cost of breach of trust by the controlling shareholders,the application of the disgorgement of corporation may be specified in addition to liability for damages.At the same time,clarify the judicial path of accountability of controlling shareholders for breach of fiduciary duties,activating shareholder derivative lawsuit and giving full play to the deterrent effect of representative lawsuit on controlling shareholders’ breach of trust.The supervision of controlling shareholders’ fiduciary duties should not only promote the effective operation of the company’s internal supervision institutions,but also take into account the fact that internal oversight and external supervision of controlling shareholders depend on the information disclosure of controlling shareholders to some extent,so it is necessary to ensure the performance of the information disclosure obligations of controlling shareholders.At the same time,the China Securities Investor Services Center can play a more active supervisory role because of its nonprofit nature,which can further protect the legitimate rights and interests of minority shareholders and maintain the stable development of the capital market. |