A Study On The Judicial Application Of The General Provisions Of The Director’s Duty Of Diligence

In China’s Company Law,the director’s duty of diligence is a general provision,with the characteristics of generality,publicity,openness and so on.Due to the uncertainty of the general clause,it is difficult for the judge to apply the director’s duty of diligence,which leads to many problems in the judicial decision.Therefore,we can analyze it in the following ways.First,the judicial practice in our country shows that there are many differences when judges apply the general clause of directors’ duty of diligence.The reason is that the standard of duty of diligence is not clear,the system of responsibility is not perfect,and the rules of the country are not compatible.Second,the experience of judicial application in countries outside the region shows that there are different modes of application in Britain,the United States,Australia,Germany,Japan and so on.The Anglo-n law system model of the beneficial elements can be transplanted.Through the above analysis,the judicial application of the general clause of directors’ duty of diligence needs to be improved in the aspects of the standard of conduct and the system of liability.First,in the standard of behavior,applying the standard of a rational businessman,and considering different circumstances may affect the factors.Specifically,directors are required to meet the requirements of ordinary managers in similar companies,similar positions and similar situations,on that basis,they are required to meet their own actual competencies,knowledge and experience.In addition,the abstract behavior type through the value measurement is helpful to the concrete application of the general clause of directors’ duty of diligence.Secondly,in the responsibility system,the responsibility investigation mechanism and the responsibility balance mechanism still need to be improved.As far as the accountability mechanism is concerned,we should set up a special type of responsibility with major negligence as the imputation principle,and perfect the elements of responsibility from the following aspects.First,we should regard the breach of the duty of diligence as the act element;Second,the scope of loss includes pure economic loss.Third the quality is determined according to santial influence.As far as the liability equity mechanism is concerned,a director’s liability equity mechanism shall be established.The introduction of business judgment rules can be subject to the Reverse onus procedure review.If necessary,direct santive review,with a view to achieving the effect of both deterrence and incentive.