The Judgment Standard And Liability Investigation Of Controlling Shareholders’ Fiduciary Duty

For a long time,in the practice of corporate governance,the interests of controlling shareholders and other participants of the company have been constantly conflicting.The control shareholders disclose information violations,improper related transactions damage the interests of small and medium shareholders frequently,and there is a certain upward trend in recent years.However,the formulation,modification and improvement of a series of laws and regulations such as the company law and securities law have not been effective in curbing the illegal infringement cases of the controlling shareholders.The main reason lies in the current laws and regulations on "control" provisions focused on the relief after the damage results,rather than the guidance and regulation before the result.In short,the current theoretical research does not give the controlling shareholders corresponding obligations,and the current legal norms lack effective rules of conduct and accountability mode,so it is difficult to deal with the situation of "the right without responsibility".Therefore,it is a good medicine to extend the obligation of faith to the controlling shareholder.The academic circles have different emphasis on the analysis and discussion of the obligation of controlling shareholders to bear the faith,but the more consistent view is that the controlling shareholders should bear the obligation of faith,and should pay attention to the establishment of specific responsibility and obligation system.Therefore,this paper mainly focuses on the control of shareholders’ fiduciary obligations of the judgment standards and accountability path.The first part asks questions.Empirical analysis on the prominent problems in the corporate governance practice in our country,combing the existing legal system when dealing with the control regulation of study the deep-seated reasons for the legal system failure,clear faith obligations to controlling shareholders abuse behavior regulation of the necessity and urgency of,for controlling shareholders to Lutheran obligations theory and legislative construction to provide guidance.The second part aims to sort out the theoretical research status of the fiduciary obligation of the controlling shareholders.This paper introduces the evolution and expansion of fiduciary obligation,and makes a carding and evaluation.On this basis,the source of the fiduciary obligation of the controlling shareholder is clarified,and the connotation and basic content of the fiduciary obligation of the controlling shareholder are determined.The third part aims to sort out the legislative basis of controlling shareholders’ fiduciary obligation under the legal environment of our country.The paper holds that the legislative basis mainly includes the following four points: first,the conflict of interests between controlling shareholders and non controlling shareholders is common in corporate governance,and it is necessary to harmonize the legislation;secondly,the current prohibition principle of prohibition of abuse of rights applied to the controlling shareholders is too broad to effectively restrict the abuse of rights related behaviors of controlling shareholders;third,there are inherent defects in the company contract,and internal governance is not effective The fourth is that the rights of controlling shareholders originate from the trust and empowerment of non controlling shareholders.The principle of the unification of rights and obligations requires the controlling shareholders to bear corresponding obligations.The fourth part mainly puts forward the judgment standard of fiduciary duty of controlling shareholders.Based on the experience of foreign law,the judgment standard of fiduciary duty of controlling shareholders is determined from the three aspects of fiduciary object of controlling shareholders,behavior judgment rule and judicial review rule,and the distribution of burden of proof of judicial review rule is analyzed.The fifth part constructs the path of accountability for controlling shareholders’ fiduciary obligations from legislation and supervision.It puts forward that the legal system should be clear about the obligation and scope of controlling shareholders’ fiduciary obligations,the establishment of direct litigation rights and judicial withdrawal mechanism of non controlling shareholders,and the applicable Order and scope of return of profits and compensation responsibilities in law;in addition,in judicial supervision,the administrative responsibility and civil liability should be improved The system is connected,the credit system of controlling shareholders is established and the securities reconciliation system is improved.