Criteria For Judging Shadow Diretors

Countries(regions) around the world have adopted different regulatory measures for those who actually control and materially influence companies,with the United States achieving control over those who control companies mainly through systems such as controlling shareholder and controller liability and piercing the corporate veil,while in Europe,the concepts of shadow directors and de facto directors are more widely used,and countries in Commonwealth jurisdictions such as the United Kingdom,Australia and New Zealand have largely developed their own regulatory systems on the concept of "director"."In Europe,the concepts of shadow director and de facto director are more widely used.The shadow director is a person who is accustomed to acting in accordance with the instructions or directions of the directors of a company,and is derived from the English company law of the last century.The shadow director system was later adopted by civil law countries and regions,including Chinese Taiwan,to fill the gap in the regulation of behind-the-scenes corporate actors.In contrast,Article 191 has been added to the Draft Company Law(Amendment)Bill to provide for a Chinese version of the shadow director provisions in order to further improve corporate governance and fill legislative gaps.This article is divided into three parts: Introduction,Body and Conclusion.The main body of which consists of four chapters as follows.Chapter 1 focuses on the legislative history of the shadow director concept in the UK,where it originated,and other Commonwealth countries such as New Zealand and Australia.It also compares the concepts and definitions of shadow directors in the enactment and case law of different countries,explores the differences in the regulation of shadow directors in various countries within Commonwealth jurisdictions,and clarifies the different provisions of the shadow director concept in different countries.Chapter 2 of this article summarises the criteria for determining a shadow director under English law,including: the subject matter is a non-legal director;the mode of conduct is an instruction or direction,which is indirect,mandatory and continuous;the target of the instruction is a director of the company;in appearance,shadow directors often hide behind the scenes,i.e.they instruct directors behind the directors without revealing their identity,but hiding behind the scenes is not a necessary condition for determining a shadow director.At the same time,governments who direct the directors of a company to act in the public interest,persons who provide professional advice to the company in a professional capacity and,in exceptional circumstances,parent companies who direct their subsidiaries may be excluded from being shadow directors.Chapter 3 of this paper discusses the controversy over whether shadow directorship should be introduced into China and the feasibility and necessity of introducing shadow directorship into China,and discusses the need for and significance of introducing shadow directorship in China from the perspective of legislation and practice.In Chapter 4,in conjunction with Article 191 of the Draft Revised Company Law,the criteria for judging shadow directors in China are constructed from the criteria of subject identity,conduct,exceptions and the typology of shadow directors in practice.The purpose of this article is to combine legislation and justice,theory and practice to elementalise the judgement criteria of the concept of shadow director in the UK,and to draw on this system to construct the judgement criteria under the concept of shadow director in China,with a view to incorporating people who exist outside the corporate governance system in company law but can have a substantial impact on the company into the corporate regulation,so that on the one hand,the liability system in the company law can be used to regulate the relevant actors.On the other hand,it can also promote the further improvement of corporate governance.