Research On The Legal Regulation Of The Abuse Of Control Rights By The Company’s Actual Controller

The damage caused by the abuse of control rights by actual controllers to companies,shareholders and creditors has always been a difficult problem in the theoretical and practical circles of company law.Under the background of the comprehensive revision of the company law,this issue has become one of the focuses of attention.Perfecting the legal regulation of the actual controller’s abuse of control rights is the inherent requirement of optimizing corporate governance,the objective need of adhering to the consistency of powers and responsibilities,and the inevitable choice to protect the legitimate interests of the relevant entities of the company,which is of great significance to improving the corporate governance mechanism,protecting the legitimate interests of the company and other relevant entities,and building a good business environment and market order.At present,there are many deficiencies in the legal regulation of the abuse of control rights by actual controllers in China,which are mainly reflected in the lack of legal regulation.Through the investigation of the current situation of relevant legislation,judicial interpretation and industry normative documents,we can find that there are the following problems in the relevant provisions on the abuse of control rights by actual controllers in China: the legal provisions are relatively principled and need to be improved,the provisions in administrative regulations and rules are relatively detailed but lack of unity,the provisions in judicial interpretation are targeted but lack of systematicness,and the provisions in industry normative documents have obvious industry characteristics but low level of effectiveness.Generally speaking,the current legal regulation of actual controller’s abuse of control rights is lacking in the general obligation specification of actual controller,which fails to give full play to the supervisory role of internal supervision institutions of the company and establish an organic and unified responsibility system of actual controller.By drawing lessons from the legislative and practical experience of foreign countries on the legal regulation of the abuse of control rights by actual controllers,and combining with the actual situation in China,the system improvement of the legal regulation of the abuse of control rights by actual controllers in China should be carried out from the following aspects:First,the legal provisions on the general obligations of actual controllers should be clarified.We should clearly stipulate that the actual controller has the obligation of good faith in the company law,build a procedural guarantee mechanism for the actual controller to fulfill the obligation of good faith,and establish a typed way for the actual controller to fulfill the obligation of good faith.Secondly,the supervision system of the board of supervisors on the actual controller should be established.We should optimize the personnel structure of the board of supervisors,give the board of supervisors independent financial control,guarantee the right to know information when the board of supervisors exercises its functions,and increase the board of supervisors’ authority to supervise the compliance management of the company.Finally,the legal responsibility system of the actual controller’s abuse of control right should be constructed.Improve the liability provisions of the actual controller to the company and the weak shareholders,increase the relevant provisions of the actual controller’s liability to the creditors,and build a systematic and scientific responsibility system for the actual controller’s abuse of the right.