The Optimization Of The Fiduciary Obligations Of The Actual Controllers Of Listed Companies

In the securities market,the actual controllers of listed companies abuse their control rights to harm the interests of the company and the interests of investors.In the newly revised Securities Law in 2019,the joint and several liability of the actual controller at fault was changed to the joint and several liability of the presumption of fault.The main regulatory basis is that the actual controller has a fiduciary obligation to the company and investors,and the fiduciary obligation in the company law is elevated to the level of protecting the interests of investors in the securities law.However,in the application of the fiduciary duty of the actual controller of a listed company,there are problems such as mixed use of concepts,lack of review standards,and low legal level.On the one hand,the academic community has gradually formed a consensus on strengthening the supervision of actual controllers,and believes that the actual controllers of listed companies should bear fiduciary obligations,but the normative documents hold that actual controllers should follow the principle of good faith.The courts often claim that the actual controller bears the corresponding legal responsibility on the grounds of violating the duty of loyalty.In practice,there is a conceptual mixture of the fiduciary duty of the actual controller of a listed company.On the other hand,our country’s detailed regulations on actual controllers are mostly reflected in the relevant normative documents issued by the regulatory authorities.The legal level is not high and the regulations are scattered,and there is no specific review standard for diligence obligations.The principle of good faith in civil law is not the same as the fiduciary duty in commercial law.The former emphasizes the equality of the status of the main body,and it is necessary to "extend oneself to others",while the actual controller occupies a dominant position in the listed company,and the fiduciary duty requires the actual controller to put first the company’s interests,and it was altruistic.Although the fundamental connotations of the fiduciary obligations undertaken by different subjects are the same,such as not harming the interests of others,and putting the company’s interests first in the event of conflict of interest,the scope and strictness of responsibilities are also different."Company Law" is the first one to clarify the fiduciary obligations of directors,but the fiduciary obligations of actual controllers are not an extension of directors’ fiduciary obligations.Directors are required to protect the company’s interests at all time.The exercise of directors’ fiduciary obligations is universal.However,the actual controller is the winner of the multi-party game of power.For the actual controller of a listed company,it does not need to assume responsibilities because of having the right of control.The actual controller assumes responsibilities when it breaks the balanced structure of corporate governance when exercising the right of control,in order to achieve the unity of rights and obligations.Thus,the fiduciary duty of the actual controller is accidental.The duty of loyalty is mostly clarified through prohibitive provisions,which is highly operable,while the connotation of the duty of diligence is more ambiguous,and business judgment rules can be introduced to clarify the standard for defining the duty of diligence.This article advocates that the actual controller has fiduciary obligations,and it is necessary to establish a corresponding system to match it.The Securities Law shall add provisions on the fiduciary obligations of the actual controller,and introduces the business judgment rule as the review standard for the diligence obligation of the actual controller.The second part is to implement the responsibilities of directors through the supervision and protection mechanism;giving give full play to the functions of independent directors to ensure that the fiduciary obligations of the actual controller can be fully implemented.The third part is to strengthen the actual control of the people’s responsibility for civil affairs through the accountability mechanism,and make sure the connection of civil prosecution,administrative punishment,and criminal accountability works well.