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7. In relation to corporate behaviour and legal liabilities:
(a) explain the term controlling shareholder under the Company Law of China;
(b) explain how the creditors may take legal action against the shareholder of a company for abusing the independent legal entity, and the doctrine of law for such legal action;
(c) explain the civil liabilities of the controlling shareholder for the damage of the company through affiliate trading.
答案:
7 This question requires candidates to explain the term controlling shareholder, and state the civil liability of the controlling shareholder for his illegal activities causing damage to the company as well as in relation to corporate behaviour and legal liabilities.
(a) In accordance with Article 217 of the Company Law, the term controlling shareholder refers to any shareholder whose equity accounts for 50% or more of the registered capital of a limited liability company, or any shareholder who holds 50% or more of the total amount of share capital of a joint stock company. It also refers to any shareholder, although whose equity or shares is less than 50%, who may have a major impact on the resolutions of the shareholders’ meeting or the shareholders’ general meeting through his or her voting powers.
(b) In accordance with Article 20 of the Company Law, where the shareholder of a company abuses the independent status of a corporate legal person and limited liability of shareholders to avoid company’s debts and damages the interests of the creditors of the company, the creditors may bring a lawsuit against that shareholder and the company jointly. This kind of legal action is under the doctrine of disregard of corporate personality or piercing the corporate veil.
(c) In accordance with Article 21 of the Company Law, the controlling shareholder of a company shall not, by taking advantage of the affiliate relationship, damage the interests of the company. He shall be liable for any loss or damage to the company.
Under such circumstances other shareholders of the company are entitled to bring a lawsuit, in the name of the company and for the interests of the company, against the controlling shareholder if the company refuses or fails to take the necessary legal action. Such a kind of lawsuit against the controlling shareholder, in the name of the company, by other shareholders is in the character of subrogate litigation.
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