| The resolution mode of the shareholders’ meeting has developed from the consensus rule to the capital majority principle,which overcomes the disadvantages of the inefficient resolution of the shareholders’ meeting and the inability to show the value of the shareholder’s capital,improves the decision-making efficiency of the shareholders’ meeting,and promotes the company’s democracy and equity of shareholders.Through the capital majority principle,controlling shareholders can not only dominate the resolution of the shareholders’ meeting,but also extend their will to the operation and management of the company,thus establishing the status of controlling shareholders in the company.However,the fact that controlling shareholders abuse voting rights and infringe on the interests of small and medium-sized shareholders also reflects the limitations of the capital majority principle.From the practice abroad,the voting mode of capital majority management must be supplemented by the fiduciary duty system of controlling shareholders.Under the influence of board centrism,China’s Company Law has relatively completed provisions on the fiduciary duties of directors,but ignored the fiduciary duty of controlling shareholders.The content of Article 21 of the Company Law is too general and lacks necessary supporting measures,which has not achieved good legal effect in practice.Other normative documents about fiduciary duties of controlling shareholders have failed to play their proper role due to the lower level of legislation or insufficient punishment.Therefore,it is necessary to strengthen the research on fiduciary duties of controlling shareholders.This paper adopts the methods of literature research,comparative analysis and value analysis.Basing on the comprehensive analysis of the fiduciary duties of controlling shareholders,this paper puts forward some suggestions on the construction of the fiduciary duty system of controlling shareholders in China.In addition to the introduction,the paper consists of four parts.The first three parts are the introduction and analysis of the relevant concepts,theoretical basis and foreign judicial practice of the fiduciary duties of controlling shareholders,which provides theoretical support for the construction of the fiduciary duty system of controlling shareholders.The fourth part is the suggestions to improve the fiduciary duty system of controlling shareholders in China,in order to promote the establishment and development of the fiduciary duty system of controlling shareholders in China.The introduction part mainly introduces the purpose and significance of this topic,the research status at home and abroad,as well as the research methods and structure of this paper.The first part of this paper is an overview,which mainly defines the important concepts related to this paper.Basing on the comprehensive investigation of the concept of control right,this part puts forward that the controlling shareholder is the one who can exert decisive influence on the management and operation of the company through the exercise of voting right,and compares the concepts related to the controlling shareholder.This part also examines the origin and development of fiduciary duty,and on this basis,combines with the concept of controlling shareholder,proposes that the fiduciary duty of controlling shareholder is the duty of care,loyalty and goodwill of controlling shareholder to the company and small and medium-sized shareholders.The second part of this paper is the legitimacy basis of the fiduciary duty of controlling shareholders.This part first introduces the theoretical support and different opinions put forward by Chinese scholars on fiduciary duty of controlling shareholders,and puts forward the viewpoint of supporting fiduciary duty of controlling shareholders.Then it introduces the different theories put forward by scholars in different countries to undertake fiduciary duty for controlling shareholders.These theories lay the foundation of fiduciary duty system of controlling shareholders from different angles.Combining with China’s reality,this part also analyzes that entrusting the controlling shareholders fiduciary duty is conducive to correcting the alienation of the capital majority principle,regulating the abusive behavior of controlling shareholders and improving the corporate governance system.The third part is the practice of fiduciary duty of controlling shareholders in foreign countries and the enlightenment to China.Although the countries of common law system and civil law system have adopted different argumentation paths on fiduciary duties of controlling shareholders,and even the regulatory methods are slightly different,from a macro point of view,it is their common value choice to require controlling shareholders to undertake fiduciary duties.American equal opportunity rule,minimum damage rule,reasonable expectation principle,substantive fairness principle,intermediate standard principle,British unfair damage system,as well as Japanese and South Korean de facto director system provide many references for China to improve the fiduciary duty system of controlling shareholders.Definitely,according to China’s national conditions,this part also makes a choice on the relevant systems of foreign countries.The fourth part is some suggestions to improve the fiduciary duty system of controlling shareholders in China.Combining with the problems existing in the dichotomy of directors’ fiduciary duties,this paper makes clear that the contents of fiduciary duties of controlling shareholders include duty of care,duty of loyalty and duty of good faith.For the duty of care of controlling shareholders,this part proposes that different standards can be applied according to whether the controlling shareholders participate in the operation and management of the company,that is,the controlling shareholders who do not participate in the operation and management of the company only need to meet the behavior standards of ordinary people with normal ration,while the controlling shareholders who participate in the operation and management of the company need to meet the behavior standards of good managers.At the same time,it also puts forward the business judgment rule as the exemption of the duty of care of controlling shareholders.For the duty of loyalty of controlling shareholders,this paper proposes that the judgment standard of substantial fairness can be applied to the related party transactions between controlling shareholders and the company.For the duty of good faith of controlling shareholders,this part puts forward the necessity of the duty of good faith as the basic rule of controlling shareholder’s fiduciary duty and the modesty of the duty of good faith should be maintained.At the same time,this paper also puts forward the common situations and responsibilities of controlling shareholders in breach of fiduciary duties.And on the premise of affirming the positive significance of the capital majority principle,this paper puts forward that the capital majority principle can still be adjusted appropriately in order to protect the interests of companies and small and medium-sized shareholders.Finally,this paper puts forward the specific remedies for small and medium-sized shareholders when controlling shareholders actually damage the interests of small and medium-sized shareholders. |
