| In China,because the company has committed the crime and being punished and suffered losses,even if the company’s criminal behavior which the company’s directors and executives personally involved in the implementation,but also rarely see the directors of the company to bear the company’ s civil liability.If the directors of the company are not directly involved in the implementation of corporate violations,especially in the level of large and medium-sized enterprises,even if the company had a major event or a major loss,the practice did not see the directors of the company to bear the liability of the case.These phenomena show that:Article 147 and 149 of the Company Law of the People’ s Republic of China,about.the directors in the course of their duties should comply with the laws and regulations,if there is a violation of the provisions of the company to bear the responsibility,which have the failure to play its due function and role.In the implementation of the company’s law enforcement obligations and responsibilities,we need the systematic in-depth study.As to the above-mentioned issues,in the case of 1)the directors shall bear the obligation of keeping the company under the circumstances of the directly illegal acts of the company;2)under the circumstances the directors indirectly implement act that make the violation of the company,the direct supervisory obligations and internal control obligations;and 3)the key component that the directors shall be liable for breach of the law-abiding business obligations.And based on the relevant legislation,precedent and doctrine of the United States and Japan,and on the basis of the empirical analysis of the relevant cases in China,the author makes a systematic and in-depth discussion.In the case of directors’ direct participation in the violation of the Company,the directors have the obligation to keep the company operating legally or not illegally.In our country,the court has confirmed that the directors have the obligation and supervision obligation to keep the company law-abiding.In these cases,the court has confirmed that the directors have the obligation to keep the company law-abiding and supervise the obligations of the company..In order to ensure that the company is law-abiding and prevent the illegal business activities in the name of the company,it shall be determined that the directors shall not only abide by the laws and administrative regulations of the directors as direct obligations when implementing the duties of the company,but also abide by the obligations of the company laws,administrative regulations,and even foreign laws.In the event of a breach of the law,even if the directors do not directly violate the laws and administrative regulations of their relative obligations,they shall also be liable for the loss of the company in accordance with the provisions of Article 149 of the Company Law.The contents of the directors’ obligations of keeping the company in accordance with the law include the non-enforcement of the acts that make the company violate the law,the necessary legal common sense and knowledge,and the legal experts should be consulted if necessary and consulting with the relevant departments if necessary.In the case of directors’ indirect participation of corporate irregularities,the directors’ compliance with the law enforcement obligations includes direct supervision obligations and internal control obligations.The direct supervisory obligation of the directors means that when the directors find that other directors,senior executives and employees have committed or violated the laws and regulations,that may cause or may had caused damage to the interests of the company,and take necessary measures;Participate in the board of directors,understand the company’ s business obligations./The internal control obligation of the directors refers to the obligations of the directors of the large and medium-sized companies to establish the internal control rules and regulations within the company to prevent the illegal operation and risk management system of the company,including establishing the necessary internal control rules and regulations within the company,setting up the internal institutions and clearly its duties,the effective implementation of internal control,the implementation of internal control to carry out supervision,inspection and evaluation,timely amendments to internal control mechanisms to make up for deficiencies and other obligations.In our country,we should establish the directors’compliance with the law enforcement obligations,direct supervision obligations and internal control obligations by improving the relevant legislation,judicial interpretation,guiding cases,legal interpretation of the referees,the accumulation of jurisprudence,the articles of association and the rules and regulations of the company.The directors’ intentional or gross negligence violates the obligation to keep the company’s law-abiding business duty belong to violation of the obligation of loyalty.In addition,the directors are obliged to keep the company’ s law-abiding and directly supervision obligations,and the internal control obligations are diligent obligations,and can determine whether it violates the diligence obligations.The liability of the directors to violate the obligations of internal control is an indirect liability,that is,the directors of the company caused by direct damage to their own under certain conditions also bear the liability.In dealing with the directors of illegal liability,should be careful with profit and loss rules.The directors’liability may be waived on the grounds of the dissident directors,the restricted agreement and the "neat hand principle". |
