| In 2005,the concept of actual controller was introduced into Chinese Company Law and Securities Law.Up to now,in the judicial practice,the company’s actual controller frequently abuses the control right,and many stakeholders suffer losses.Whether the existing legal norms are sufficient to control and deal with the behavior of the company’s actual controller,therefore,there are many different views in the academic circles.As an important tool of corporate autonomy,the articles of association is also an important basis of corporate governance,and it is not clear whether the articles of association have legal binding force on the actual controller of a company.At present,it is generally acknowledged that the legal binding force of the articles of association covers the directors,supervisors and shareholders of the company.Most scholars believe that the articles of association of the company’s organizational structure,shareholders and shareholders between shareholders,shareholders and the company’s rights and responsibilities have legal effect.Through the retrieval and induction of the relevant cases,the actual controller’s use of control rights against the interests of companies and creditors in recent years is more frequent.With the rapid development of our country’s economy,the corporate governance structure of our country is becoming more and more complicated,and the existing control mechanism of the company’s actual controller is unable to effectively solve various kinds of abuses of control right and other profit-making behaviors of the company’s actual controller because of the lack of systematization and meticulous characteristics.The articles of association of the company’s actual controller’s legal binding force is not clear enough,but also led to judicial practice,such as non-uniform standards.Part of the reason is that the relevant articles of association and the actual controller of the company and other norms are not in place.On the one hand,against the background of upholding the autonomy of the company,the validity of the articles of association granted by the shareholders of the company through the law is derived from the fact that many matters are stipulated to safeguard the overall interests of the company;on the other hand,the articles of association,as an autonomy norm and a multi-party contract,judicial practice and the definition and connotation of the articles of association of the company are not clear enough,and the importance of the shareholders of the articles of association of the company is also very deficient,which leads to almost no legal clauses involving the binding force of the articles of association on the actual controller;on the other hand,the ambiguous standards for identifying the actual controller and the unclear definition are one of the causes for the frequent abuse of control rights by the actual controller of the company;in addition,the legal binding force of the articles of association on the actual controller is more or less explicit.Therefore,where the legal binding force of the articles of association of the company on the actual controlling party of the company remains to be improved in the existing legal provisions,the articles of association of the company shall,based on the actual circumstances,implement the rights and obligations of the actual controlling party of the company,specify the legal force of the articles of association of the company and the actual controlling party of the company in the relevant laws,allow the articles of association of the company to have specific legal binding force on different types of actual controlling party of the company,and divide the binding force into subdivisions in accordance with the formation criteria of the actual controlling party;determine the actual controlling party to bear certain legal consequences therefrom,and thus curb abusive use of power by the actual controlling party to some extent. |
