| In 2005, the actual controller appears in the Company Law as a formal legal concept for the first time because of the amendment. After the Company Law has defined the concept of the actual controller , the Securities Act provides the duties and responsibilities of the actual controller in the securities issued occasions. However, the current legislation was not specific for the identification of the actual controller standards, and the relevant legal regulation measures are yet to be improved. This judicial practice in the specific findings makes it difficult and, in turn gave birth to the issue of theory and research.The concept of the actual controller exists in our country just for a short time, thus look to the experience in the extraterritorial country into the issue certainly became one of the inevitable choices. It is called shadow directors in the UK, where a series of legislative documents and rich experiences tell the concept of equitable property - the company model of ideal practice and the economy goes against the reality of running a correction. Just in this context of equity, combined with the value and function of this concept, this text view the difference between the actual controller and the controlling shareholder as the main line, made from the main element, the behavior element, the object elements of the actual control of persons identified method, and the type of the actual controller to be classified. Meanwhile, with regard to the actual controller for the legal regulation of behavior measures, this text presents the point of view of the analog behavior of controlling shareholders and directors of the implementation on the basis of analyzing the current status of legislation.Follow this line of thinking, besides the abstract and the preamble, this text can be divided into four chapters:The first chapter is about the legislative study of actual controller, which can be divided into three parts. The first part is about the meaning of actual control in the Company Law. Article 217of Company Law clearly put forward the concept of the actual controller, which label the difference between the actual controller and the (controlling) shareholder, and it clear the behavior way that the actual controller control of the company, that is through investment, agreement or other arrangements for the realization of the transfer of control of the company. The second part is about the meaning of the actual controller in the Securities Act. Securities Act and the SFC regulatory documents make a more detailed provisions of the obligation and responsibility of the actual controller in the context that the basic content of the actual controller is determined in Company Law, which relate to shares issued, the information disclosure, and major asset purchase, sale, exchange, etc. The third part is about the evaluation of current legislation of the actual controller. Company Law and Securities Act will bring positive significance for the introduction of actual controller concept as a formal concept of law, which helps to make up for the existing gap between the legal framework and the facts in order to improve corporate governance, guidelines and proposed more extensive Solutions. But, it increases the difficulty of judicial application as the legal concept of Borrowed property and the existing legislation of the imported file is not complete. This requires us to look extra-territorial, analog with the British shadow directors systems, and find reference and inspiration in the comparative law studies .Chapter two is about the nature, value and function of the actual control system, which is divided into three parts. The first part presents the equitable property of the actual controller system. Actual controller is a functional concept, which plays an important role to make up deficiencies existing in legal framework, balance the individual and general justice. On the one hand, it recognizes the positions of shareholders, directors and senior managers in corporate governance in the existing legal framework, on the other hand, it make up for the potential damage through their function of transferring control of the company to. It protect the existing norms situation, through the creation of exceptional provisions to address the constantly emerging problems about governance issues, and use flexibility instead solidify ,which is the exact expression to the equitable concept. This is also the foundation of the value pursuits of the actual controller. The third part discusses the functions of the actual controller positioning system. Its function is twofold: First, improving the corporate governance; Second, restraining the conflict of parties of the company.Chapter three is about the standards of identification of the actual controller, which is divided into three parts. The first part is the analysis of constitutive elements of the actual controller. Mirroring the theory of system analysis of British shadow directors, the text start a specific interpretation for the identification of the actual controller from the main elements of the standard, behavior element, and the object element. The second part is about of the types of the actual controller, which can be divided into stock control and non-equity control, separate control and joint control, legal control and factual control. The third part is the distinction between controlling shareholders and the actual controllers. Both are likely to master the control of the company, but they can be effectively distinguished from the control basement and approaches of the company's control as well as legal aspects, such as regulatory measures.Chapter four is about the legal regulations of the actual controller, which is divided into two parts. The first part describes the current legislation of duties and responsibilities of actual controller, which is mainly in Company Law, Securities Law and SFC regulatory documents.Overall, duties and responsibilities of the actual controller are: obligations and responsibilities under the related party transactions, obligations and responsibilities under information disclosure, obligations and responsibilities under securities issue as well as the prohibition of insider trading. The second part are advices about the duties and responsibilities of actual controller perfecting. Viewing shadow director system as a reference, the measures of legal regulation should be taken for the actual controller as same as the controlling shareholders and directors, and the establishment of fiduciary duty and corporate personality denial system should be established. |
