Research On The Continuation Of The Post Of Outgoing Directors

In 2005,my country revised the "Company Law" and added a new system for the continuation of the post of directors who intend to leave.That is,when a director fails to be re-elected in time at the expiration of his term or resigns during his term,resulting in the number of board members falling below the quorum,the post will continue until the successor director.take over.This regulation effectively solves the problem that the board of directors may be "paralyzed" due to the departure of directors,and it has its own rationality.The 2021 draft amendment to the Companies Act also retains this provision.With the further development of the market economy,the flow of directors between companies has become increasingly frequent.The inadequacies of this provision have also gradually emerged,and the following issues have not received sufficient attention from the theoretical circle: the provision does not stipulate the duration of the continuation of positions,which may lead to the dilemma of "remaining indefinitely" for directors who intend to leave office;It is too mechanical,ignoring the subjective initiative of shareholders,and does not consider the provisions of the company’s articles of association for successor directors;in addition to "indefinite retention",the increase in occupational risks brought by the continuation of the post of directors who intend to leave cannot be ignored;in the judicial field,Judgments have different views on this issue,and the situation of "different judgments in the same case" hinders the unification of national judgment rules.These issues need urgent attention.This article takes the second paragraph of Article 45 of the current "Company Law" as the center.First of all,it explains the definition of the research object,and introduces the functional value of this provision.Then,starting from the legal relationship between the director and the company,it examines the reasons for the continuation of the post of the resigned director.The current law stipulates that the original director’s entrustment contract with the company has not been terminated during the continuation of his duties,and he is still in office.The rules for the dismissal of directors without cause were clarified,and the 2021 revision draft of the Company Law also added this clause,namely Article 66.Based on the principle of maintaining the unity of the application of legal theory and the principle of equity of legal interests,this paper believes that the discretionary right to rescind the entrustment contract enjoyed by directors should not be restricted..At this time,it is mainly based on postcontract obligations to carry out job continuation,that is,job continuation is the obligation to leave office.In order to maintain the unity of the full text,this article still takes the continuation of the post of the resigned director derived from the current legal provisions as the object of discussion,rather than the continuation of the post of the resigned director.At the same time,it also clarifies the rights,obligations and exceptions of the directors to be resigned during the continuation period.Then,this paper analyzes the above-mentioned problems existing in this regulation.While pointing out the problem,it also analyzes the main existing solutions,explores its shortcomings,and makes a good connection with the following improvement suggestions.Finally,on the basis of the above argumentation,this paper tries to put forward a perfect suggestion for the continuation of the post of the resigned director.Combining our country’s law,extraterritorial legislation and the judgment point of view in our country’s judicial practice,we propose solutions from the perspective of legislative improvement and proactive prevention.The proposal for legislative improvement is to add a "proviso" clause,that is,respect the personnel arrangement of the successor directors in the company’s articles of association,and at the same time stipulate a reasonable period for the continuation of the position and the consequences of expiration;the proposal from the perspective of active defense in advance is that the board of directors should fill in the vacant directors within the scope of statutory authorization.Set up alternate directors.The aforementioned improvement suggestions need to be used in combination,that is,the board of directors fills vacant directors and sets up alternate directors within the scope of statutory authorization,and the company chooses and applies it according to its own situation,and does not impose legal mandatory provisions;at the same time,the current Company Law 40 th is still retained.The provisions of the second paragraph of Article 5 are used as a bottom-line solution after legislative improvements.Through the above measures,the solution to this problem will be broadened,in order to take into account the rights and interests of the company’s property management and the freedom of economic activities of the resigned directors.