Examining the"Unity of Liability"Rule for Dual Controllers
Due to the"similarity"or"consistency"in the"de facto status"and"de facto capability"of"dual controllers"in companies,the regulatory logic of the new Company Law regarding"dual controllers"is largely consistent.That is,transitioning from"status equivalence"to"unity of liability".In most cases,the new Company Law regulates the behavior and liabilities of these two types of entities in the same provision.The regulatory logic involves two approaches:to equate actual controllers with or analogize them to controlling shareholders and to equate or analogize"dual controllers"to"directors".However,this regulatory logic does not permeate the entirety of the new Company Law.For instance,Article 21 stipulates general provisions for shareholders'exercise of rights but does not apply them to actual controllers.Similarly,Article 23 only provides for piercing the corporate veil when controlling shareholders abuse their control,without addressing similar actions by actual controllers.Such legislative approach of"being equated to controlling shareholders/directors,but not completely equivalent to controlling shareholders/directors",confines the liability of actual controllers primarily within the company,whereas the liability of controlling shareholders may extend beyond the corporate boundaries.The new Company Law should adhere to a consistent fundamental regulatory logic and more thoroughly implement the principles of"status identity"and"unity of liability".The Supreme People's Court should also address the deficiencies in the liability provisions for"dual controllers"through judicial interpretations.
万方数据
