Research On The Good Faith Obligation Of Controlling Shareholders In The Transfer Of Control Rights

Currently in the transition period of market economy,China is faced with the situation of large-scale enterprise equity transfer transactions,which provides a huge guarantee for the rapid growth of market economy.However,in order to maximize their own profits in the process of transaction,the controlling shareholders exercise their business management rights by disorderly actions or inaction,which cause the damage to the rights and interests of enterprises and small and medium shareholders frequently occur.At present,the Company Law has not found an effective way to prevent and remedy.Article 20 of the Company Law on the prohibition of abuse of rights is too broad,resulting in almost no effective and reasonable application in the judicial practice of the transfer of control rights,and obtaining civil compensation from the application of false statements in the Securities Law is limited to the situation where the information disclosure obligor violates the provisions,resulting in the interests of the vast majority of minority shareholders without relief.It is precisely because the controlling shareholders enjoy huge de facto management rights in the company’s operation and management,but lack the obligations corresponding to their rights,which is the fundamental reason why the minority shareholders cannot prevent and remedy.Therefore,the special obligation of the controlling shareholder over other shareholders in the transfer of control rights is the best restriction to the controlling shareholder.Controlling shareholders have a controlling position because they enjoy actual control rights,and in fact there is a fiduciary relationship between controlling shareholders and minority shareholders.At this time,the obligation that controlling shareholders should bear is called the obligation of good faith.Fulfilling the obligation of good faith is a magic weapon for controlling shareholders to keep their place and balance the interests of themselves,the company and minority shareholders.In this paper,the concepts of "controlling shareholder" and "duty of good faith" are defined and theoretically analyzed,and the legal basis behind them is analyzed.Then,three specific obligations of controlling shareholders in the transfer of control rights are introduced: the obligation of careful investigation,the obligation of information disclosure and the obligation of sharing control rights premium.These three obligations can be found in the legislation of our country,but can not be effectively applied because of its low legislative rank,unclear provisions,small scope of application,conditions and so on.In view of the above problems,by comparing the relevant precedents and legislation of various countries and regions,combining with the legislative experience and practical achievements of many countries and giving evaluation,this paper proposes measures and suggestions for the controlling shareholders’ duty of good faith in the transfer of control rights in China.After legalizing the relevant concepts,the standards for the degree of careful investigation and information disclosure are clarified.The application rules of control premium sharing are made clear,and then the concrete obligation system of controlling shareholders in the transfer of control rights is tried to be established,so that the interests of companies and minority shareholders can be effectively protected.