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公司实际控制人虽然没有法律的授权但却在事实上拥有支配和操纵公司经营活动的权力。这种权力属于事实权力,起源于股份所有与表决权分离、人力资本优势、市场支配地位等因素,并有其深层的社会、经济和文化背景。公司事实权力虽然对法权配置具有某种弥补作用,但是往往导致公司运作偏离公司法的预期,造成公司法权配置功能失灵、异化,损害公司及利益相关人的合法权益。因此,法律的导向应当是发挥趋利避害功能。一方面,在公司自制空间内承认其存在的合理性;另一方面,通过法权抑制、消除其负面影响,确保公司治理沿着法律的轨道运行。
Although the actual controller of the company has no legal authority, it actually has the power to dominate and control the business activities of the company. This kind of power belongs to the factual power, which originated from the factors such as the ownership of shares and the separation of voting rights, the advantage of human capital and the dominance of the market. It also has its deep social, economic and cultural background. Although the factual power of the company has some remedy to the disposition of legal rights, it often leads to the deviation of the operation of the company from the expectation of the company law, resulting in the malfunctioning and alienation of the legal disposition of the company and damaging the lawful rights and interests of the company and its stakeholders. Therefore, the law should be guided by the function of profit and avoidance. On the one hand, the legitimacy of its existence is acknowledged within the self-made space of the company; on the other hand, by suppressing the law, eliminating its negative effects and ensuring that corporate governance runs along the legal track.