Research On The Legal Regulation Of Abuse Of Control By The Actual Controller

As an important subject of corporate governance,the actual controller holds the control of the company,which is a Critical concept set by the Company Law.With the help of control,the actual controller can transform his will into the will of the company and carry out legal acts on behalf of the company.In practice,with the development of the economy,the company presents a trend of collectivization,and the abuse of control by the actual controller is more complicated,which not only damages the interests of the company,shareholders and creditors,but also undermines the normal market order,which is not conducive to the normal operation of the company and the healthy development of the market.Therefore,it is of great significance for the regulation of the actual controller.Starting from the definition of control,this paper summarizes the definition of control by comparing the interpretations of control in different legal provisions,discusses the concept of actual controller in the existing legal system in depth,explores the feasibility of shareholders as actual controllers,summarizes the classification of actual controllers,and divides actual controllers into three types: actual controllers replacing the controlling shareholder status,actual controllers replacing directors and actual controllers replacing senior management status.On this basis,the typical manifestations of abuse of control by the actual controller in judicial practice are discussed based on cases,mainly discussing the behaviors of off-the-books appropriation of company funds,use of related relationships to conduct unfair related party transactions,and manipulation of companies to make false statements.When sorting out the relevant legal regulation system in China,we focus on analyzing the deficiencies of the existing legal system in the regulation of actual controllers,and find that the provisions on actual controllers in the Company Law,the Securities Law and relevant departmental rules have not yet formed a complete legal system,the definition of the concept of actual controllers has not been unified,the rights and obligations of actual controllers in daily operations are missing,and the standards and types of abuse of control are not clear.These problems are an important reason why there are serious difficulties in judicial practice in determining the identity of the actual controller,determining the abuse of control,and compensating the company and creditors afterwards.With reference to the existing laws on shareholders,directors,supervisors and other corporate entities,and drawing on the advanced experience of similar foreign systems,this paper puts forward some suggestions for regulating actual controllers,that is,clarifying the fiduciary obligations of actual controllers in the Company Law,and differentiating status to give different degrees of fiduciary obligations;Improve some specific provisions on the regulation of actual controllers in the Company Law and the Securities Law,establish the basic rules for actual controllers,play the role of pre-prevention and post-remedy,and play a mutually supporting role in amending the relevant laws and regulations in the Company Law and the Securities Law.It is hoped that the sound proposals put forward will help to ensure the normal operation of the company and safeguard the interests of the company,shareholders and creditors.