A Comparative Study Of The Rights And Duties Of The Company’s Board Of Directors Between China And Cambodia

With the development of modern company,the corporate governance structure is gradually changing from "Shareholder centralism" to "Board of Directors centralism".The directors stand in the top position of the company,then their rights and power also increase.Being the manager,controller and decision maker,the directors’ effect on the operation of the company has been more significant with their power’s enlargement.Thus,on this background,theoretical realms are demanded more and more research issues related to directors.Meanwhile,the promotion of the status of the directors and the enlargement of their rights and power are causing the power abuse problems.The directors are the agents of the company,if their behavior is intended to gain their own interest,it will cause not only the company huge losses and the benefits of shareholders or other people,but it will also bring losses in agency’s cost.In order to solve these power abuse problems,the system of directors’ duties have developed,and the main purpose of this system is to regulate the scope of directors’ rights and powers,to enable the directors to perform their duties in an effort to maximize the overall interests of the company and its shareholders.It is very helpful for the development of the company by improving the directors’ rights and duties allocation,and the improvement of the corporate government structure is greatly depending upon these factors.The Chinese company law,which was revised in 2005,was regulate the duty of care(duty of diligence)into the legal category.On the basis of perfecting the director’s duty of loyalty,the legislation made up for the director’s duty of care,this is a great significant progressive in Chinese law.In the same year,the Cambodian Commercial Enterprise Law also formally implemented,and provided a more comprehensive regulation on the directors’system,such as regulate that the directors have the right to manage the company’s business and affairs.However,the provisions which relevant to directors’ duties is very vague,the legislation still exists many problems,for example the provision on directors’ duty of loyalty is too principle and does not specify the scope of the subject of the loyalty duty,more than this it still lacks the provision on information and duty disclosure.Yet,comparing the directors’ rights and duties system between Cambodian and Chinese law is being a great significance.By comparative study of the legal provisions between the two countries,this study finds out that there are some differences between the two countries’ director’s systems.Therefore,in this comparing study,the author hopes to figure out some good learning curve for Cambodia from the Chinese legislative experience,and explores the relevant improvement of legal path.This study has been taken the legal norms of the directors’ rights and duties of Cambodian and Chinese law as a basic starting point.Then,the author analyzes the weak and insufficient points in the present legal provision of the two countries;furthermore,pays attention to related provision of other countries and consider about how to create a good legal system of directors’rights and duties.By Excluding the introduction and conclusion,the study is composed of the following tree parts:Part one is the analysis of the directors’ rights in Cambodian and Chinese law.This part begins with the legal basis of the director’s right,then explains the concept of the director,and discusses the source and scope of the director’s right.Secondly,in order to have a basic and clear understanding of the legal basis of the allocation of directors’ rights,the author makes a brief analysis of the position of the directors,the nature and boundary of the directors’ rights.Finally,based on the legal basis of the role of the directors and the allocation of the rights,the main point is focused on the directors’ rights and power system.At the same time,through the study of the theory of corporate organ,from the perspective of internal allocation of power and the checks and balance system,this study also analyzes and discusses the adscription of the company’s representative issue.Part two is the analysis of the directors’ duties in Cambodian and Chinese law.This part begins with the analysis of the legal relationship between the company and the directors.There are two theories about the relationship between directors and companies:agency or trust and mandate.Through the analysis of these two theories,it can be concluded that whichever theories have been used,the directors still have the duty to the company.Secondly,this paper discusses the definition and nature of the directors’ duty,and further does an empirical analysis of the judgment standard of the duty’ violation in the judicial practice.In the end,the author makes a detailed analysis the determination of directors’ duties and their contents in Chinese and Cambodian law,and also demonstrates some existing problems of directors’ duties in Cambodian law.In part three,the author combines the above discussions and analyzes the core parts:the legal norm and the role of institution systems.Then,the author carries a specific comparison and analysis of the legal systems on the directors’ rights and duties between Chinese and Cambodian law.On the basis of this comparison,the author analyzes the useful experience from Chinese law which Cambodian lawmakers should learn from,and finally finds out some reasonable improvement methods for develop Cambodian company law.