Study On The Duty Of Attention Of The Actual Controller Of A Company

With the development of society,the corporate governance structure is becoming more and more complex.As a hidden identity,the actual controllers have caused more and more illegal acts,and caused more and more harm to the company.Therefore,as the exercising subject of corporate control,it is in an important position,playing the role of business execution and operator,and enjoying the actual controllers of corporate resources brought about by the hidden identity,we should take necessary measures to regulate them.Article 147 of the Company Law of China only stipulates the duty of diligence.The duty of care mentioned in this article should be included in the duty of diligence.However,the current law does not include the actual controller,and there are no detailed provisions on the specific connotation,scope of application,applicable standards,applicable conditions of the duty of diligence.Therefore,this paper attempts to explore the duty of care of the actual controller from the following four aspects.The first part,firstly,defines the actual controller in our country,and elaborates its concept according to the relevant normative documents such as our law;secondly,through comparative analysis with the four concepts of controlling shareholder,controlling shareholder,related party and anonymous shareholder,clarifies the difference between the actual controller and related concepts;finally,divides the actual controller into three types,namely,voting right.Type I actual controller,contract control actual controller and other types of actual controller.In the second part,after clarifying the relevant concepts and classifications of the actual controller,the author defines the duty of care of the actual controller of the company,and makes a concrete analysis from its necessity,concept,distinction and classification with directors’duty of care,and further divides the duty of care into general duty of care and special duty of care,and clarifies the main differences between them.Now the level of skills is different.The third part,after defining the duty of care of the actual controller,combines with the current legislative situation of our country,discusses the criteria for judging the duty of care of the actual controller,considers that the commercial judgment rules should be introduced,and makes a typological analysis of the application of the commercial judgment rules on the basis of analyzing the meaning,necessity and constituent elements of the commercial judgment rules.This part mainly uses the combination of subjective and objective methods(mainly objective,supplemented by subjective)to judge and analyze the duty of care of the actual controller.If the actual controller does not violate or the extent of the violation does not reach significant negligence,the loss caused by the company can be protected by the rules of commercial judgment;on the contrary,it can not be protected.The fourth part systematically analyses the civil liability of the actual controller for breach of duty of care from five aspects:the nature of liability,the principle of imputation,the determination of liability,the way of assuming responsibility and the different modes of litigation relief,in order to have a more comprehensive grasp of the civil liability of the actual controller.