| There are many theoretical definitions of corporate social responsibility,although there is disagreement in academic circles,but a consensus has been reached recently: corporate social responsibility should at least refer to the economic benefits,ecological environment,labor protection,etc.and legal liability.In response to the needs of building a harmonious society and optimizing the business environment,my country added the expression "social responsibility" to Article 5 when revising the "Company Law" in 2005.Article 19 of the "Draft)" further clarifies and refines the company’s social responsibility,so as to reflect the purpose of attaching importance to the company’s social responsibility.However,subject to a series of factors such as legislative concepts and legislative techniques,the connotation and extension of corporate social responsibility and how to implement it in corporate law are not clear.In judicial practice,it is not uncommon for the legitimate rights and interests of company employees and consumers to be violated,and companies pollute the environment and waste resources.It also reflects the dilemma of social responsibility clauses.Therefore,it is a major challenge for us to improve the legal system of corporate social responsibility.As the formal basis for the improvement of the legal system and provisions,the choice of the legislative model will directly affect the future direction of the substantive legislative content and the strength of the law’s implementation.Whether it is the "purpose of promoting the success of the company" in the United Kingdom,the "business judgment rule" derived from judicial precedents in the United States,or the mandatory provisions on the content of social responsibility in Indian company law,they are all based on their own social system and economy.Institutional design made by development.As for our country,the traditional company law theory believes that the interests of the company and the interests of the shareholders are consistent,but in fact,the two are fundamentally the same.A company is an entity that is independent from the interests of shareholders and the public,and is essentially the coordination and unity of the interests of shareholders and the interests of other stakeholders.Corporate interests are different from public interests and shareholders’ interests,and the difference from the former constitutes the basis for its social responsibility,while the difference from the latter indicates that the social responsibility it should undertake should have boundaries.Therefore,the essence of corporate social responsibility lies in the realization of the company’s long-term interests,and the realization process depends on the directors in charge of the company’s management.This article intends to start from the existence basis of corporate social responsibility,from the perspective of directors’ obligations,by analyzing the impact of corporate social responsibility on directors’ obligations,and aims to explore the realization mechanism and best path of social responsibility in company law.This paper is oriented to solve judicial practice problems,according to the research framework of discovering related paths—building institutional logic—interpreting key issues—analyzing special situations,and comprehensively applying basic theories such as institutional economics,law economics,and sociology of law.This paper examines the practical effects of the corporate social responsibility system under the current legal framework from a relatively microscopic research perspective,so as to provide a set of feasible ideas for legalizing the social responsibility system on the basis of returning to the logic of directors’ obligations in corporate governance.The main point of this thesis is: Article 5 of the Company Law does not provide sufficient provisions on social responsibility,which creates a dilemma in legislation and an embarrassing situation in adjudication,and also has to face the dilemma of whether it is actionable or not.On the premise of adhering to the path of sustainable company law and on the basis of respecting the company’s profit standard,the heavy responsibility of social responsibility should be placed on the shoulders of directors,and the realization logic depends on the director’s obligation system.There are two ways for the institutional logic of social responsibility to affect directors’ obligations: to affect directors’ diligence and fiduciary duties,and to affect directors’ decision-making on special matters.Based on this,it is finally proposed to increase the consideration of stakeholders in Articles 1,5 and 20 of the Company Law;in addition,in Article 5,it is added that when a company undertakes social responsibilities,it should fully consider employees,consumers,etc.The interests of stakeholders and social public interests such as ecological environmental protection.The state encourages companies to participate in social welfare activities and publish social responsibility reports.State-owned enterprises and listed companies should publish social responsibility reports on an annual basis.Change Article 147 to read: Directors,supervisors,and senior managers shall abide by laws,administrative regulations and the company’s articles of association,have a duty of loyalty to the company,and make decisions in good faith for legitimate purposes,and shall not use their powers to seek unreasonable gains.legitimate interests.Directors,supervisors,and senior management personnel have a duty of diligence to the company,and should consider the best interests of the company,give reasonable attention to managers,diligently improve their management skills,and disclose social responsibility-related information in a timely manner;A promise clause is added to Article 49;a paragraph is added to Article 151: The controlling shareholder and actual controller of the company use their influence on the company to instruct directors and senior managers to engage in damage to the company,shareholders and other If the actions of other stakeholders cause losses to the company,shareholders or other stakeholders,they shall be jointly and severally liable with the directors and senior managers.In addition to the above suggestions on the law,it is also proposed that the company law should encourage the personalized design of the company’s articles of association.The company may set an annual or single amount cap for charitable donations in the articles of association according to the principle of rationality,and may also stipulate donations.Proportional cap.Specifically,in addition to the introduction and conclusion,this thesis is divided into five chapters:The first part,the active response of directors’ obligations to corporate social responsibility,aims to build a bridge between social responsibility and directors’ obligations.First of all,it analyzes the relationship between the company’s social responsibility and directors’ obligations,and sorts out the theoretical consensus and legislative approach of the company’s social responsibility in the process from the tool of resisting acquisition to the return of rights protection.The realistic response of responsibility is used to demonstrate the optimal position of directors’ obligation path in the practice of social responsibility.Secondly,through the analysis of the impact of social responsibility on corporate behavior decision-making in terms of structural adjustment,value consideration and form expansion,etc.,to measure the interest groups in corporate decision-making,and supplemented by the consideration that corporate behavior decision-making is driven by directors,it can actively influence directors’ obligations.Respond to social responsibility for feasibility proof.Finally,through the explanation of the internal necessity of directors’ subject attributes,the proof of the external necessity of commercial social characteristics,and the confirmation of the overall necessity of corporate social responsibility characteristics,the necessity of directors’ The second part is to construct the institutional logic that corporate social responsibility affects directors’ obligations.It is the best choice for the heavy responsibility of social responsibility to fall on the shoulders of directors,and the realization logic depends on the director’s obligation system.There are two ways for the institutional logic of social responsibility to affect directors’ obligations: to affect directors’ diligence and fiduciary duties,and to affect directors’ decision-making on special matters.As for the former,first of all,the commitment of social responsibility requires directors to act in the best interests of the company and no longer take the interests of shareholders as the first,weakening directors’ obligations to seek profits for the company,giving them greater discretion,and maintaining constant balance in a dynamic environment.The power and freedom to change priorities.Secondly,compliance with the law and good governance of the company is also a form of social responsibility.At the level of law-abiding,directors’ duty of loyalty has been expanded,from a moderately idealistic law-abiding state that focuses on compliance without harming public interests,to a highly idealistic law-abiding state that includes compliance with soft law rules.The relevant legal provisions include the consideration of stakeholders and the introduction of the estoppel mechanism;at the level of good governance,directors’ fiduciary duty has also expanded,and the main body of directors’ fiduciary duty has been expanded from the company to shareholders,creditors,employees,consumers,etc.Interested parties,the connotation of the duty of loyalty cannot be fully reflected in the original Article 148,and it should also incorporate good faith and legitimate purposes,that is,directors should make decisions in good faith for the best interests of the company,which is also a duty of loyalty.Require.At the level of good governance,the duty of diligence of directors has also been expanded.Directors should fulfill the reasonable duty of care generally expected by managers,diligently improve their management skills in order to make optimal decisions,and should promptly respond to the company’s internal shareholders and external The society fulfills the obligation of social responsibility information disclosure.As for the latter,based on the assumption of the decision-making concept from the economic man to the integration of the social man and the manager,social responsibility will affect the decision-making of directors on special matters such as the company in a special period of bankruptcy,in the special state of acquisition and anti-acquisition,or on charitable donations.influence.The third part discusses the judgment of the company’s interests in the directors’ diligence obligations under social responsibility.Directors assume social responsibilities and should be based on the best interests of the company,so how to judge the interests of the company? First,analyze the company’s interests from the perspective of social interests,overturn the theoretical basis of the assumption of homogeneity of corporate interests in the past,and under the social responsibility,the company’s greatest interest is to maximise the interests of traditional shareholders,and it is clear that the company’s interests and shareholders’ interests are fundamentally the same.,confirming that the current perspective of the company’s interests should be transformed from a local to a whole.Secondly,the company’s interests are measured from the perspective of directors’ code of conduct.When there is a conflict between the company and its relevant stakeholders,it should be based on a legitimate purpose;when the company and its shareholders conflict,act in the best interests of the company;when directors and the company conflict,they must not use their power to seek illegitimate interests or the company.Opportunities and related transactions should be disclosed in a timely manner to obtain permission;finally,directors should perform the diligent duty of contemplating the best interests of the company,that is,directors ’decision-making should respect the company’s profit standard,benefit the company’s healthy and sustainable development,and should be subject to the market reputation mechanism.Effective constraints should be in line with the moral wisdom of the company’s operation,and directors should make the best choices diligently.The fourth part analyzes the directors’ social responsibility reporting obligations under social responsibility.First of all,the current situation of my country’s social responsibility report is investigated.Due to the lack of legislation and the blank of norms,there are many drawbacks in the current voluntary social responsibility information disclosure in my country,such as the distorted incentive phenomenon of greenwashing for disclosure,the low coverage and scattered distribution of social responsibility information disclosure,and the content and form of social responsibility information disclosure.The lack of a unified standard for social responsibility information disclosure hinders its comparability and credibility.Secondly,demonstrate the important position of directors in corporate social responsibility information disclosure.Social responsibility information disclosure will put pressure on the company and its controllers and managers,promote the company to be responsible for its own actions,and force it to consider the interests of non-shareholder members,which will help Investors and the public use such information to pay attention to the implementation of corporate social responsibility policies.Third,analyze the necessity and feasibility of legalization of directors’ information disclosure,and require directors to fulfill their social responsibility reporting obligations.Finally,based on our country’s legislative system and drawing on typical foreign legislative examples,it proposes relevant system design,builds a normative system that combines mandatory and voluntary,and compels state-owned companies and listed companies to disclose social responsibility information on an annual basis.The content and form of information disclosure should also be regulated,or the establishment of a unified publicity platform and a third-party verification system may be considered to meet my country’s current economic development and information disclosure requirements.The fifth part,social responsibility affects the decision-making of directors on special matters,and corporate donation is one of them,and discusses the obligations of directors in corporate public welfare donation.First of all,an analysis of the theoretical basis of the company’s public welfare donation shows that the antecedent of the company’s donation is the conflict between fiduciary obligations,as well as the conflict and symbiosis between public welfare and private interests,and the solution to the conflict of interest in the company’s public welfare donation is the key.,lies in reasonable and sound director decision-making.Second,directors should make good decisions in charitable donations.Because goodwill is the starting point of a reasonable and prudent director’s decision-making,and the original intention of diligence and loyalty has limited constraints on directors’ behavior,and the requirements of the company’s long-term interests also provide incentives for directors to do good.Thirdly,it puts forward specific ideas on the standards for directors to fulfill their obligations in public welfare donations.That is to say,on the premise of respecting the company’s autonomy of will,for reasonable purposes,it should be limited to a reasonable amount of money and make decisions in line with the bottom line of asset justice.The decision-making procedures of directors should meet the requirements of due process.Finally,improving the incentive and restraint mechanism related to it can promote and regulate the decision-making of directors in corporate donation. |
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