On The Civil Legal Liability Of The Actual Controller Of A Company For Breaching The Obligation Of Good Faith

The actual controller of a company is the person who can actually control the behavior of a company and is in the core position in corporate governance.At present,the company law of our country has not made clear stipulation on the obligation of good faith of the actual controller of the company,and the relevant legal liability is still to be improved.Starting from the definition of the actual controller of the company,this paper analyzes the reasons why the actual controller undertakes the obligation of good faith to the company,shareholders and creditors,as well as the content of the obligation of good faith,and on this basis analyzes the legal responsibility that the actual controller of the company should undertake.This paper is divided into four parts:The first part defines the concept of the company’s actual controller from three aspects.Firstly,the scope of the subject is defined and compared with the easily confused subject,namely the controlling shareholder and the operator.Secondly,common control methods are listed according to the different sources of the control rights of the actual controller of the company.Finally,the core control rights of the actual controller of the company are discussed.The second part combs the theoretical basis of the obligation of good faith of the actual controller of the company from two aspects of the principle of good faith and the theory of fairness and justice and points out that the actual controller of the company has the obligation of good faith.Furthermore,from the perspective of duty of care and duty of loyalty,the paper expounds the main contents of the duty of good faith of the actual controller of the company.The third part analyzes the main manifestations of the actual controller’s breach of the obligation of good faith,which are respectively improper related transactions and self-transactions,special related transactions in disguise to obtain remuneration and obtain business opportunities.The fourth part first discusses the civil liability of the breach of fiduciary duty company actual controller,by using the method of combining subjective and objective standard to control the actual breach of fiduciary duty to judge whether the,demonstrate actual controllers breach of fiduciary duty imputation principle should be presumption of fault liability principle,and clarify its shall bear civil liability;Combined with the current company law norms in China,aiming at the problems of the deficiency in the relevant norms of the actual controller of the company,this paper puts forward some improvement suggestions related to the affiliated transaction system,the creditor subrogation system,and the good faith obligation of the actual controller of the company.