| The intended limitation of liability for breach of faith means the corporation,not by law,limitation or release of liability arising from a director in breach of fiduciary duty.The alleged breach of duty,under the current law of our country,the responsibility of directors in violation of the duty of loyalty and diligence.From the historical evolution of the company law,corporate governance has gradually shifted from the original "shareholders’ meeting centrism" to the "board centrism" in the modern company law.In the modern era when "board centrism" prevails,national company laws give extremely high powers to the board of directors,and the board of directors plays a vital role in the management and decision implementation of the company.In order to avoid or restrict the occurrence of directors harming the interests of the company due to their abuse of power,countries actively explore ways to restrict the power of directors.After the fiduciary obligation is invented,it becomes the best "rein" to restrain the directors.Through the establishment of fiduciary obligation,the directors can diligently and faithfully complete the company affairs.In 2021,China’s new company law amendment performance is more remarkable.The new law not only optimizes the organizational structure of the company,gives the board of directors a higher status and greater power,but also strengthens the responsibility of the company’s controlling shareholders and managers.However,excessive responsibility assumption and low responsibility identification standards can easily cause directors to invest in the actual management of the company,so that the company can only get more cautious decisions,but cannot get better decisions.Therefore,in the rapidly changing market economy,how to guarantee the interests of the company while appropriately relaxing the "reins" bound on the directors.To enable it to make more efficient and timely decisions in the interests of the company without taking huge responsibility risks.The restriction and exemption of directors’ breach of faith liability became a new topic.Compared with countries with developed off-domain company law,the relevant regulations of Chinese company law in the restriction of directors violating trust liability lag behind.Not only does there specify no standard for breach of fiduciary duty,but in terms of the limitation of directors ’liability,there is only one objection to directors’ liability,which cannot fully cope with the increasingly complex number of director liability cases.A gentle and scientific director responsibility system can not only prevent directors from violating their obligations,but also stimulate the enthusiasm of directors and make more efficient and more reasonable decisions conducive to the company.Director breach of duty is as important as the limitation of liability.The symbiotic coexistence of the two should not be biased.So how is it be under which circumstances should the director be liable for breach of faith?What are the criteria for directors’ liability for breach of faith?What is the rationality of the limitation of directors to breach trust?Where is the superiority of intended and statutory restrictions reflected?What is the scope of the intended limits?What advanced experience outside the domain is worth learning from?How should the system construction of the responsibility of directors be launched?This article is based on the above questions.The first part of the article is the theoretical basis of the intentional limit of directors.Through the analysis of the dishonest liability itself,determine the restrictive ability of the dishonest liability of directors,and then explore the theoretical basis of the intentional restriction.It aims to clarify the feasibility and superiority of implementing the intentional limit of directors in our country.In the second part,through the analysis of the rule of law outside the domain,it clarifies the advanced experience exists in the proposed restrictions of foreign company law,so as to make reference from the construction of the proposed liability of directors in Chapter 4.The third part,through the analysis of China’s current legal norms and judicial cases,the shortcomings of the identification of breach of faith responsibility and the restriction of responsibility are analyzed,and provides a realistic support point and breakthrough for the later restriction of directors’ breach of faith responsibility.The fourth part,on the basis of summarizing the advanced experience outside the region and the shortcomings of the country,provides an institutional framework for the intended responsibility of Chinese directors,trying to explore a complete set of restriction system,mainly for the scope,channels and standards of intended restrictions. |
