刍议控制股东违背诚信义务的法律防范与救济

On the Prevent and Remedy of the Controlling Shareholders Disobeying their Fiduciary Duty

文章详细阐释各国有关控制股东违背诚信义务损害其他股东权益的各种防范、救济措施及我国相关法律规范之现状,通过论述提出为完善对控制股东违背诚信义务损害其他股东权益的防范与救济,我国《公司法》需在总则中明确规定控制股东诚信义务,增加限定股东会召开的最低表决权数规定、完善控制股东表决权排除制度与股东诉讼制度。

The duty of fiduciary could prevent the controlling shareholder from abusing his controlling power with the help of share voting and other methods. Remedy for the injured corporation and the minority shareholders is the necessary part of the duty of fiduciary. With respect to the superiority of the controlling shareholder in Chinese corporations, the establishment of the duty of fiduciary in our Corporation Law will be a prerequisite for the protection of the interests of the corporation and minority shareholders. The article analyzed the current status of the legislation on fiduciary duty. And upon the analysis, the article also explained the problems that exist in the regulation of fiduciary duty including the low and absent aspect of legislation, the provisions can＇ t be applicable to all companies and othea＇s concerning unreasonableness of the legislation. And then, the article suggests several measures that can be used as perfecting the＇legislation of the fiduciary duty which include put provisions that stipulating the fiduciary duty into general provisions of corporation law, a series of provisions that are designed to regulate the implementation of the fiduciary duty which include perfecting the shareholder derivative litigation, excluding the voting right of controlling shareholder and etc.