| In2005, the actual controller first defined as a formal legal concept by theCompany Law. After that, the Securities Act and the regulatory documents enacted byCSRC also have some provisions about the actual controller. But it is unreasonablethat the Company Law provide the actual controller can’t be the shareholders,sometimes the actual controller may also be the shareholder. And as a fundamentalproblem, it is necessary to talk about something about the actual controller, such as thedifference between actual controller and the controlling shareholder, the bodies ofcontrolling, the methods of controlling, the meaning of controlling. The bodies ofcontrolling include natural person and legal entity, and perhaps it is controlled only byone body or more. The methods of controlling include directly or indirectly holdingcompany’s shares, contract and interpersonal relationship, or by several methods ofthem. But to be a senior management isn’t as a single methods of controlling.Meanwhile, controlling is by voting power to shareholders meeting finally.In addition, as a part isn’t completely negated by law, the actual controller havesome rights, such as the shareholders’ rights, the right to get payment, the right tomanage and develop. On the other hand, they also commit some obligations, such asfiduciary duty and duty of care, more Specifically Speaking, duties on connectedtransaction, securities issue, information disclosure, insider trading and avoidance.Before regulating, we need to respect their legitimate rights. When the actualcontroller damages company’s or others’ legal rights, we can resolve it according torules, for example, shareholder derivative litigation, tort suits, the stockholders‘withdrawal rights. Meanwhile, we can chose ‘the disregard of corporatepersonality’,‘the combination of supervisors and independent directors’, to reduce theactions of the actual controller to abuse rights, and maintain the operation of company.That’s mean actual controller can be the main body of the disregard of corporatepersonality, supervisors and independent directors can work together. |
