Analysis Of Actual Controller’s Civil Liability To Corporate Creditors

Since the concept of the actual controller introduced into Company law,the controversy over its concept has not stopped.The reason is that the concept,which originated in the field of public companies,is anachronistic.With the continuous development of corporate governance,the concept of actual controller should be redefined.As the "king" of the company,from financial management,personnel appointment and removal,to the company’s major decision-making,it must be controlled by the actual controller.Compared with the regulation of actual controller in Securities Law,the regulation of actual controller in Company Law is very deficient,and unlike shareholders and other active participants,corporate creditors tend to be in a more negative position,and their legitimate interests are often not effectively protected.Compared with foreign laws,there are direct provisions on the responsibilities of subjects such as actual controllers,whether it is the shadow director mode with "director" rule as the core in the UK,the American mode with "substantial control" as the core,or the German mode with "enterprise group" as the core,and they all has been developed the corporate personality denial system in judicial practice so that the interests of creditors can be effectively protected.However,we Company Law only stipulates the civil liability of the actual controller to the creditor under certain circumstances such as defective capital contribution and liquidation.Through case analysis,it is found that although there is no direct legal basis for the liability of the actual controller to the creditor in Company Law,there are many judgments that apply the corporate personality denial system to the liability of the actual controller in judicial judgment.However,due to the lack of identification standards of actual controllers and the absence of judgment basis,there are many problems in judicial practice,such as difficulties in identification of actual controllers,confusion of judgment basis and insufficient judgment reasoning.In response to the above problems,this paper provides some suggestions from the redefinition of the concept of actual controller,the identification standard of actual controller,and the improvement of the application rules of the corporate personality denial system,in order to provide some suggestions for the improvement of the actual controller’s civil liability to creditors.