Research On Duty Of Care Of Independent Directors

The listed company is the most important market subject in the capital market.As an important part of the supervision of the listed company,the independent director’s obligation clarity and responsibility implementation deserve our deep thought and research.At present,the frequent occurrence of illegal activities of Listed Companies in China is not conducive to the long-term prosperity and stability of the socialist market economy.In China,the punishment of independent directors is mainly carried out by the letter of decision on administrative punishment issued by the CSRC.Therefore,the author has sorted out 38 letters of decision on administrative punishment issued by the CSRC in recent three years,starting from the illegal and illegal matters of listed companies,the defense of independent directors and the reexamination opinions of the CSRC,carried out data sorting and empirical research,and combined with the overseas system,finally given a Some practical suggestions.This paper consists of three chapters:The first chapter of this paper summarizes the research background of independent directors’ duty of care,which lays the foundation for theoretical research and empirical analysis.First of all,the author introduces the legislative trends of independent directors in China in recent years,from the revision of the company law to the introduction of the fifth judicial interpretation of the company law,and then to the revision of the corporate governance standards of listed companies,from the legislative level to analyze and pay attention to the degree of attention to the independent director system and the future development direction.Secondly,the author sorted out all the cases of administrative punishment of independent directors by CSRC from 2017 to 2019.From the perspective of dynamic administrative punishment,compared with the cases sorted out by scholars in previous years,it can be seen that the proportion of independent directors involved is increasing year-on-year,which also confirms the necessity of studying the duty of care of independent directors.Then,the author analyzes the relationship between the duty of diligence and the duty of care,the duty of care and the duty of faithfulness,and explains the direction and reason of this study.Thirdly,through sorting out and classifying a large number of administrative punishment cases,the author concludes that the independent directors mainly defend themselves through the difference between their duty of care and that they should have reasonable professional trust right.Therefore,the duty of care of independent directors in China is classified into two types: the duty of care between independent directors and executive directors,and the duty of care between independent directors with different professional backgrounds The two categories will be described in the second and third chapters respectively.Finally,from the three aspects of the punishment of administrative penalty,the defense reasons of the independent directors and the review opinions of the CSRC,the data of the cases of administrative penalty of the CSRC are sorted out and analyzed.At the same time,the contradictions between the independent directors and the executive directors in China and the problems related to the duty of care of the independent directors with different professional backgrounds are also discussed,The problems caused by the practice of independent directors in China are the support of the empirical research in this paper.The second chapter studies the difference of the duty of care between independent directors and executive directors.First of all,in view of the problems about the duty of care between the independent director and the executive director extracted in the last chapter of the first chapter,the author clarifies the difference between the duty of care between the independent director and the executive director,analyzes and researches from the relationship between the social economic foundation and the superstructure,according to the current situation of the development of China’s capital market,and considers the company law system and the securities market system In view of different legal areas,the relevant systems are not completely harmonious,and the analysis shows that the capital market of our country has certain limitations at this stage.Based on the professional environment of independent directors in our country,and with reference to relevant investigation reports,the analysis shows that the system of independent directors in our country,as a superstructure,lags behind in the current stage,which proves that it is necessary to put independent directors and executive directors in our country at this stage The duty of care of directors should be differentiated and can no longer be treated equally.Secondly,based on the above data analysis,this paper abstracts the problems existing in the duty of care of independent directors and executive directors in China,and makes a comparative study from the standards of duty of care performance,the ways and situations of responsibility bearing,and introduces the institutional provisions and the proportion of independent directors in the practice of the duty of care of independent directors in the United States The typical cases of courts in Delaware and other places analyze the situation of the duty of care in the practice of independent directors in the United States,and draw the conclusion that there are differences in the institutional basis between China and the United States.Although there is no distinction between the duty of care of independent directors and executive directors in practice between the two countries,there is no such mature institutional basis of independent directors in China,so we should distinguish the two.Finally,through the practical comparison between China and the United States,the author has made a reasonable direction for the distinction between the duty of care of independent directors and executive directors in China.On the one hand,we should put an end to "one size fits all" and make case analysis of the case.We should pay attention to the causal relationship between the acts of independent directors and the illegal results.On the other hand,from the procedural point of view,we should The burden of proof is reversed to the plaintiff,so that the plaintiff can prove that the independent director has not fulfilled the duty of care,so as to reduce the burden of the independent director.The third chapter studies the difference of duty of care between independent directors with different professional backgrounds.First of all,according to the problems about the duty of care of independent directors with different professional backgrounds extracted at the end of the first chapter,from the reality of the independent director system and practice,the author analyzes and concludes that China’s listed companies need different professional independent directors to enter the board of directors,especially the accountants with mandatory requirements and more common legal persons,and the practice shows that independent directors have their own He is good at the field,but he can’t be proficient in all professional fields.He has an urgent need to rely on the reports and statements made by board members,financial directors,external audit institutions and other authorities and personnel.Unfortunately,in practice,some decisions of the CSRC mention reasonable professional trust right,and all of them have no real name.Without exception,independent directors should bear the responsibility of trust leading to illegal matters,which is the necessity to distinguish their duty of care.Secondly,the author introduces the development of American business judgment rules,the role they play,and the detailed regulations of the system,as well as the typical cases of courts in Delaware and other places to illustrate how American courts give independent directors reasonable professional trust in practice.In addition,it also introduces how the independent director liability insurance system in the United States is implemented in practice,and its impact and role.From these two aspects,it analyzes and compares the current system in China.According to the empirical analysis and theoretical research,the independent director system is an "imported product".In practice,the CSRC disputes the difference of duty of care between independent directors with different professional backgrounds,which is mainly caused by the lack of business judgment rules in China’s legislative and judicial system and the failure to fully implement the independent director liability insurance system.Finally,based on the practice comparison between China and the United States,the author suggests that we should gradually introduce the rules of business judgment,give independent directors reasonable professional trust,and point out that we should refine the system of independent directors’ responsibility,rather than blindly exempt the responsibility of independent directors.In view of the problems of the professional environment of independent directors,we should also implement the responsibility insurance of independent directors as soon as possible Specific measures and suggestions,such as insurance system,correspond to the problems arising from the above.In addition,the author from a practical point of view,according to the above proposed amendment concept and direction,in combination with the actual situation of the premise,in the form of adding and amending articles of law to give specific recommendations.