Legal Issues Concerning The Criteria Of The Actual Controller Of Companies

Modern corporate governance issue is not just the agency problem between shareholders and managers, in an increasingly fragmented and complex ownership structure of today, the actual control concept proposed help people through the complicated structural arrangements, found that the company directly the real behavior of the operator, the company improve the corporate governance structure, regulate corporate behavior to provide a new perspective. Accurately identify the actual controller to help protect the interests of minority shareholders and creditors of the company, it is the premise and basis of the actual controller of legal regulation."Control" is a comprehensive concept of a multi-disciplinary. The nature of actual control in the law, is to control the human will into the will of the company, so that the company is not necessarily legal action or power certain legal acts. The emergence and development from the actual control concept can be seen in history, "the actual control" is a capital market with the needs of Chinese legal practice and production, concept development. The original meaning of the concept of man is, "the company has the actual control", has nothing to do with whether the identity of the shareholders. The current rule of law for the definition of the actual controller contradictions exist and needs to be corrected. Current definition of actual control "the actual controller is not shareholder" requirement is flawed, the actual control of the company and shareholders should be a cross relationship.In practice, some companies will be intermediate-level controller identified as the actual controller, such a determination, while not comply with existing rules, but with a certain degree of rationality. In Chinese listed companies, if the company’s operating policies and investment plans are not ultimately controlled by the body to make to be found among those who actually control the level of control of the company artificial. If it determines the actual control of the intermediate-level controller of the company, we may disclose recognized intermediate level and the actual control of the ultimate controlling party by a block diagram, etc., while supplementary explanation of the intermediate-level controller identified as the actual control of reason. Among the "common actual control" of the concept has not yet appeared in the official documents of the law, I will type it into acting jointly actual control of joint action is inconsistent with the actual controller, combined with China’s family business situation discuss the actual control of the family business presumption rule. The company has a significant influence on the actual control of people do not meet the definition, does not have the maneuverability, fuzzy boundaries are not clearly defined, but in practice are rarely enforced, the proposed abolition of the actual controller finds significant impact rule.It finds that the actual controller should be unity of subjective and objective manner. Subjective aspect is subjective intent of actual control of the company, the objective aspect of having the actual control of the company’s objective ability. The company’s objective in control capabilities, should be able to actually control the shares, based on a reference index or Shapley-Shubik power banzhaf power index on the basis of a dominant position and ownership structure analysis of the largest shareholder on the board of directors to consider, managers, etc. middle-level control and process control will implement sustainability, while taking control of the company under discontinued operations; the company control of the subjective intent, consider limiting the financial investors, shareholders and the nature of its own regulations, business strategies, personal Cause and other factors, and finally to the principle of substance over form to make a final identification.This paper is divided into four parts:An introduction is made and literature review questions. This section lists the China A-share market actual controller finds that some phenomenon, and points out the conflicting or legislation contrary to the place, and the actual controller finds the theory and practice of the review.The first chapter is an overview of the concept of actual control. This chapter from the perspective of accounting, law and other comprehensive analysis of the actual controller of the concept, meaning, and combed the existing legal rules identified by the actual control of the relationship between the actual controller and the controlling shareholders were Discrimination.The second chapter is the actual controller finds reflection of existing rules. People should be able to have actual control of the identity of the shareholders, actual controllers should be able to identify an intermediate level of control person, the actual control of the rules found in the actual control of the common need to define and distinguish the actual control of concerted action jointly inconsistent action actual control of the common people. The actual control of the relationship between husband and wife and other close relatives need to be clear presumption of acting in concert. Significant influence not be identified as the actual controller.The third chapter is to identify the actual controller Reconstruction rules. It finds that the actual controller shall have control of the company from an objective ability to start with control of the company’s subjective intent, and finally to the principle of substance over form to make a final identification.