(I) Definition of Actual Controller in the Company Law According to the third paragraph of Article 216 of the Company Law, "Actual controller refers to a person who can actually control the company's behavior through investment relations, agreements or other arrangements, although he is not a shareholder of the company." Controlling shareholder and actual controller are different concepts. According to the second paragraph of Article 216 of the Company Law, "the controlling shareholder refers to the shareholder whose capital contribution accounts for more than 50% of the total capital of a limited liability company or whose shares account for more than 50% of the total capital of a joint stock limited company; Although the amount of capital contribution or the proportion of shares held is less than 50%, shareholders who have sufficient voting rights on the resolutions of the shareholders' meeting and the shareholders' meeting according to their capital contribution or shares held. " Therefore, based on the provisions of the Company Law, the fundamental difference between the controlling shareholder and the actual controller lies in whether the controlling shareholder directly holds the shares of the company, while the actual controller does not directly hold the shares of the company. (2) The CSRC has expanded the connotation of actual controller. In practice, the CSRC has expanded the connotation of the actual controller, and defined the actual controller as the person who has the control right of the company, and is no longer restricted by "not a shareholder of the company". According to the understanding and application of Article 12 of the Measures for the Administration of Initial Public Offering and Listing, the actual controller has not changed-1No. (Fa Zi [2007]No. 15, hereinafter referred to as 1No.), and the CSRC defines the company control right as "1No." In practice, the CSRC defines the controlling shareholder and the actual controller as the same person. The definition of actual controller in Shanghai and Shenzhen Stock Exchanges is inconsistent. The listing rules of Shanghai Stock Exchange are still consistent with the Company Law, and the actual controller is defined as a person who is not a shareholder of the company. However, the Stock Listing Rules of Shenzhen Stock Exchange defines the actual controller as "a natural person, legal person or other organization that can control or actually control the company's behavior through investment relations, agreements or other arrangements." To sum up, the actual controller in practice refers to a natural person, legal person or other organization that can actually control the company's behavior through investment relations, agreements or other arrangements, although it does not directly hold the company's shares, or its directly held shares do not reach the proportion required by the controlling shareholder. (III) Requirements for Information Disclosure According to the requirements of the Information Disclosure Content and Format Criteria for Companies Offering Securities to the PublicNo. 1No.-Prospectus (revised in 2006), the actual controller shall disclose it to the ultimate state-owned holding entity or natural person. Two. Relevant major laws and regulations (I) Company Law Article 216 of the Company Law stipulates that "controlling shareholder" refers to a shareholder whose capital contribution of a limited liability company accounts for more than 50% of the company's total capital, or whose shares of a joint stock limited company account for more than 50% of the company's total share capital; Although the capital contribution or the proportion of shares held is less than 50%, but according to their capital contribution or shares held, shareholders have enough voting rights to the shareholders' meeting and the resolutions of the shareholders' meeting. "Actual controller" refers to a person who is not a shareholder of the company, but can actually control the company's behavior through investment relations, agreements or other arrangements. "(II) Measures for the Administration of Initial Public Offering and Listing Article 12 of the Measures for the Administration of Initial Public Offering and Listing stipulates that" the issuer's main business, directors and senior management personnel have not changed significantly in the last three years, and the actual controller has not changed. "(III) Article 13 of the Interim Measures for the Administration of Initial Public Offering and Listing on the Growth Enterprise Market stipulates that" the issuer's main business, directors and senior management personnel have not changed significantly in the last two years, and the actual controller has not changed. "(IV) Standards for Contents and Formats of Information Disclosure of Companies Offering Securities to the PublicNo. 1-ProspectusNo. 1-Prospectus Article 35 stipulates that" the issuer shall disclose the basic information of the promoters, major shareholders holding more than 5% of the shares of the issuer and actual controllers. It mainly includes: (1) If the promoters, major shareholders holding more than 5% of the issuer's shares and actual controllers are legal persons, the time of establishment, registered capital, paid-in capital, place of registration and major production and operation, composition of shareholders, main business, total assets, net assets and net profit of the latest year and the first period shall be disclosed, and whether the relevant financial data have been audited or not shall be indicated; If it is a natural person, it should disclose nationality, whether it has permanent residency abroad, ID number and address; (2) The establishment time, registered capital, paid-in capital, registered place and main production and business premises, main business, total assets, net assets and net profit of other enterprises controlled by the controlling shareholder and actual controller, and indicate whether these data have been audited; (3) Whether the issuer's shares directly or indirectly held by the controlling shareholder or actual controller are pledged or otherwise disputed. The actual controller shall disclose it to the ultimate state-owned holding entity or natural person. "(V) Understanding and Application of Article 12 of the Measures for the Administration of Initial Public Offering and Listing-Opinions on the Application of Securities and Futures Law 1 3. The relevant standards for determining the actual controller are explained as follows according to the Measures for the Administration of the Acquisition of Listed Companies of China Securities Regulatory Commission: Article 84 In any of the following circumstances, it is deemed to have the control right of the listed company: (1) (2) The investor can actually control more than 30% of the voting rights of the shares of the listed company; (3) investors can decide to appoint more than half of the members of the board of directors of the company by actually controlling the voting rights of the shares of the listed company; (4) The voting rights of the shares of the listed company actually controlled by the investors are sufficient to have a significant impact on the resolutions of the shareholders' meeting of the company; In addition, according to the understanding and application of Article 12 of Opinions on Application of Securities and Futures Law [2007] 1 issued by the CSRC, the company control right is the power that can have a significant impact on the resolutions of the shareholders' meeting or actually control the company's behavior, and its source is the direct or indirect equity investment relationship with the company. At the same time, the opinion also gives the idea of determining the company's control right: to determine the ownership of the company's control right, we should not only review the corresponding equity investment relationship, but also analyze and judge the substantial impact on the issuer's shareholders' meeting, the resolutions of the board of directors, the nomination and appointment of directors and senior managers and other factors according to the actual situation of the case. According to the interpretation of the above two laws and regulations on the company's control right, the person who owns the company's control right refers to the person who can have a significant influence on the resolutions of the shareholders' meeting or actually control the company's behavior by directly holding the company's shares, through investment relations, agreements or other arrangements, or through the above two ways. In practice, to judge whether it has the control right of the company (that is, whether it can have a significant impact on the company's decision-making or whether it can actually dominate the company's behavior), in addition to the indirect equity investment relationship between investors and the company, the following factors should be comprehensively analyzed and judged according to the specific situation: ① its influence on the shareholders' meeting; (2) the impact on the board of directors; (3) Nomination, appointment and removal of directors and senior management personnel; (four) the company's shareholders' shareholding and its changes; ⑤ Changes of directors and senior managers of the company; 6 other relevant information identified by the certification audit department.
Legal objectivity:
Article 216 of the Company Law The meanings of the following terms in this Law: (1) Senior managers refer to the managers, deputy managers, financial officers, secretary of the board of directors of listed companies and other personnel as stipulated in the articles of association of the company. (2) Controlling shareholders refer to shareholders whose capital contribution accounts for more than 50% of the total capital of a limited liability company or whose shares account for more than 50% of the total share capital of a joint stock limited company; Although the capital contribution or the proportion of shares held is less than 50%, but according to their capital contribution or shares held, shareholders have enough voting rights to the shareholders' meeting and the resolutions of the shareholders' meeting. (3) "Actual controller" refers to a person who is not a shareholder of the company, but can actually control the company's behavior through investment relations, agreements or other arrangements. (4) Relationship refers to the relationship between the controlling shareholder, actual controller, directors, supervisors and senior managers of the company and the enterprises directly or indirectly controlled by them, as well as other relationships that may lead to the transfer of the company's interests.