Research On Legal Regulations Of Improper Non-Duty Words And Behaviors Of Directors And Senior Executives

With the development of modern enterprises,Shareholders who are the owners of the company gradually transfer their right to operate the company to directors and senior executives.Directors and senior executives play an important role in the company’s operation and management.Article 147 of the "Company Law" stipulates that directors,supervisors,and senior executives should obey duties of loyalty and diligence to the company when they perform their duties,so as not to conflict with the company’s interests,and to maximize the company’s interests.However,in addition to the conduct of corporate executives who may not properly perform their duties in their work,they may harm the company’s interests by their non-duty behaviors.There are more and more cases where directors’ and executives’ non-duty words and behaviors have a negative impact on the company.Personal behavior has also entered the public’s field of vision.Directors and senior executives are personally condemned for personal violations of social morality and even suspected crimes.At the same time,because senior executives represent the company to a certain extent,their improper non-duty behaviors also have a huge impact on the company’s interests and damage the company’s goodwill.In response to the damage to the company’s interests,the current law has failed to regulate it well.Therefore,this article mainly raises questions based on real cases,and discusses the necessity of regulation of directors and senior executives’ improper non-duty words and behaviors,the theoretical basis and specific path of legal regulation,and the realization of corporate benefit relief.Except the Introduction and Conclusion,this article has four chapters.Chapter 1,This article introduces cases in practice that improper non-duty words and behaviors of directors and senior executives have caused damage to the company’s interests,defines the research object of this article “ the improper non-duty words and deeds of directors and senior management”.Discussing the phenomenon in the case have triggered reflections on this phenomenon,and three main questions have been raised on this basis: The first question is whether it is necessary to regulate the company’s interests caused by such improper non-duty words and behaviors of directors and senior executives;the second question is The theoretical basis and specific path of legal regulation;the third is the responsibility of directors and senior executives who make improper non-duty words and behaviors,that is,how to relieve the damage of the company’s interests.In response to these problems,chapters 2 to 4 of this article will focus on specific analysis.The second chapter focuses on the necessity of the regulation of non-duty words and behaviors of directors and senior executives.It mainly starts from two aspects: the relevance of directors and senior executives’ non-duty words and behaviors to the company’s interests,and deficiencies of the existing regulatory paths for non-duty words and behaviors of senior executives.Firstly,the relevance of the interests of directors and senior executives to the company is divided into the proximate nature of the directors and senior executives and the company,and the involvement of non-duty words and behaviors of directors and senior executive,which ultimately leads to damage to the company’s interests,such as damage to the company’s goodwill and market value.Secondly,Deficiencies in the existing regulatory pathways for non-duty words and behaviors of executives.The current company law is currently only limited to the regulation of duty behavior,and there are deficiencies in the regulation of nonduty behaviors.The securities law is difficult to apply to the regulation of non-duty behaviors of directors and senior executives;Labor law has insufficient legal remedies and limitations of incomplete regulatory objects;There are deficiencies in autonomy by articles of association or agreement.In practice,there are often no autonomous agreements or articles of association related to the regulation of non-duty words and behaviors of directors and senior management,and directors and senior executives have no incentive to impose obligations on themselves through autonomy.At the same time,autonomy also has the disadvantage that the agreement may be unclear or omitted.The third chapter deals with the above-mentioned second problem,and explore the theoretical basis and specific regulation path of directors and senior executives’ nonduty words and behaviors.In view of the current deficiencies of the regulation,the author believes that it is possible to return to the corporate law perspective of corporate interest protection.The theoretical basis of the company law governing non-duty words and behaviors of directors and senior executives is mainly trust theory and social responsibility.The trust theory points out that the company has two kinds of trust when appointing executives.The professional competence trust in the field of duty behavior and the trust of directors and executives in both duty and non-duty fields are in line with the general cognition of social ethics and the trust that has a legal awareness of abiding by the law.Social responsibility requires that company should regulate nonduty words and behaviors of directors and senior executives in response to social expectations.In terms of the specific regulatory path of the Company Law,by appropriately expanding the loyalty obligation,the improper behaviors of directors and senior executives’ non-duty words and behaviors are included in the loyalty obligation regulation.The main reason is that the non-duty behavior of directors and executives violates the core connotation of the duty of loyalty to safeguard the interests of the company and not conflict with the interests of the company,resulting in damage to the company’s interests.Moreover,the duty of loyalty belongs to an open system,and the types of behaviors are constantly evolving.Including it into the duty of loyalty does not contradict the framework of the duty of loyalty.The fourth chapter is the relief of the company’s interests.The company’s benefit relief is mainly reflected in the responsibility of directors and senior executives who violate their obligations.The improper non-duty words and behaviors of directors and senior executives damage the company’s goodwill in violation of the duty of loyalty.Therefore,the compensation for damages determined for violation of the duty of loyalty is mainly embodied in the relief of damage to the company’s goodwill.The amount of compensation for such damages can be determined by referring to the existing methods of determining the liability for tort of goodwill,and combining the special considerations of directors and senior executives’ non-duty words and behaviors.At present,there are Personality Law,Competition Law and Intellectual Property Law models in the existing goodwill infringement liability determination.However,different goodwill protection models have similar calculation methods in terms of the definition of losses,which can be summarized as compensation for direct losses and infringers’ benefits Scope,multiples of license fees,and fixed compensation calculation methods.However,due to the difficulty of determining the loss of goodwill,in practice,courts often use fixed compensation in deciding compensation and provide appropriate relief to the damage of the company’s interests.Although improper non-duty words and behaviors of directors and senior executives do not conform to the current model of goodwill infringement,the result is also the same-damage to goodwill,and there is also a problem of difficulty in defining losses.Therefore,if directors and senior executives violate their loyalty obligations and make improper non-duty words and behaviors,their damage compensation liability determination method can learn from the fixed compensation method for goodwill damage,which is supported by the court according to specific considerations.The main considerations for the responsibility of directors and senior behaviors are factors such as the status of the subject and the closeness of the company,the seriousness of the behavior,the reputation of the company,consideration of stock price volatility,and the actual bearing capacity of the directors and senior behaviors.