| The actual controller of the company,as a type of interest subject arising from the separation of the company’s management rights and ownership,has the moral hazard of concealing itself and abusing the control rights of the company by constructing a complex equity structure.Improving the legal regulation of the actual controller of the company is one of the hot issues discussed in recent years in the academic circles and judicial practice circles around the revision of the "Company Law".In practice,there are many cases in which the actual controller evades legal responsibility by taking control or hollowing out the company,or realizing vertical and horizontal mixing,and evading legal responsibility by its own special status.The real negative impact of the environment has also become apparent.However,there is no regulation on this in the current law.Therefore,in the revised draft of the Company Law,there are as many as 27 expressions about the actual controller,which can be used to support one point: the regulation on the abuse of rights by the actual controller has been imminent.However,it is also because of the current swing of value positions in legislation and the lack of regulatory provisions that judges cannot "have laws to abide by" in the process of adjudication,and have to replace legislative value judgments with their own value judgments,resulting in a large number of Different judgments in the same case.In the final analysis,the legislation failed to effectively regulate the abuse of the actual controller,which produced a series of chain reactions: the application of the law by judges in the judiciary was chaotic and disorderly,and there was no uniform and clear standard for the determination of the actual controller’s abuse of control,and further The business environment has also taken a severe negative hit.At present,most studies adopt a single legislative position,focusing on how to regulate the abuse of the actual controller and what legal consequences should be borne by the abuser.Scholars from all walks of life have also adopted various methods of argumentation to prove the truth.However,different from these research ideas,the research position of this paper is judicial,empirical and grass-roots-oriented,aiming to maintain the framework of the current law.A set of clear and operable judicial standards(or constituent elements)for determining the abuse of rights by the actual controller will help to form a stable,unified and orderly judiciary.In addition to the introduction and conclusion,this paper is divided into five chapters.The first chapter outlines the current status of the judicial process of determining the actual controller constitutes abuse,and finds that there are problems of inconsistent standards and different judgments in the same case in the current judicial process.The second chapter analyzes the causes of this problem,mainly due to the vagueness of legal provisions and the improper application of the law by judges.This mainly includes expanding the meaning of Article 20 of the "Company Law" without justifying it,and failing to clarify the "Minutes of the Nine Peoples".Under the premise of the logical relationship between Item 11 and the "Company Law",the application of the two high documents and the wrong application of Article 7 of the Civil Code are three aspects;The third chapter puts forward the "two-class" identification standard for judging the abuse of the actual controller’s rights-the objective class standard(appearance of exercising rights and the existence of conflict of interest)and the subjective class standard(infringement intention,infringement behavior,interest identification and rights The fourth chapter puts forward optimization suggestions,pointing out that the document should strengthen the rationale for citing legal provisions,and select three typical cases to analyze the specific judicial application of the "two-class" standard in different modes: meeting the two-class standard model,the model that does not meet the objective class standard and the model that does not meet the subjective class standard,and calls on the Supreme Court to issue a corresponding judicial interpretation as soon as possible in the future,taking into account the two-class standard proposed by the author,and guiding the court to make judgments. |
