Research On The Legal System Of Diligence Duty Of Directors

The development of board centralism promotes the improvement of the status of director companies and makes them gain more power and responsibility space.The provisions of directors’ rights are increasingly rich and perfect,but the corresponding content of directors’ obligations is still unclear,which is particularly obvious in the aspect of directors’ duty of diligence.The current system of directors’ duty of diligence needs to be improved.Chinese law only stipulates the principle of the system of diligence duty of directors,but does not clarify the judgment criteria.This not only leads to the directors not performing their obligations actively and diligently and the corporate governance dilemma,but also leads to the consequences of different trial standards and different verdicts in the same case.On the basis of the existing system,we should improve the system of directors’ duty of diligence from three aspects: the subject of compensation,the criterion of judgment and the responsibility.The company,shareholders,chairman of the board of directors,supervisors,creditors,etc.,shall have the principal qualification to recover from the director who violates the director’s duty of care.By contrast with the legal provisions of America,Japan and other countries and typical cases,we can know that our country is different from other countries in the subject and way of recovering directors’ compensation.In Chinese studies on directors’ responsibility of diligence,there is a lack of research on the qualification of the compensation subject of the chairman of the board.However,with the position of the chairman in the company,he should have the qualification to hold directors accountable,and ask directors to stop the infringement and compensate for the damage.This approach of corporate autonomy to solve the duty of diligence of directors can not only reduce the burden of the court,but also reduce the cost of the company,and help to maintain the relationship among directors,supervisors and shareholders.In terms of the criteria for judging directors’ duty of diligence,Chinese law has different provisions on the duty of diligence and the duty of loyalty in detail,but only provides for the duty of diligence in principle,leading to inconsistent standards of judgment and confusion of judicial judgment.However,due to the differences between Chinese and foreign national conditions,we can not apply the rule of commercial judgment directly,but we can absorb the idea of the rule of commercial judgment through the inclusive condition of good faith and help the court perfect the examination standard.It is also worth exploring how to take responsibility after directors breach the duty of care.Compared with countries such as Japan and the United States,the company law of our country only stipulates the principle of directors need to bear the compensation liability,and does not stipulate the reason of directors or other non-property liability.This makes it impossible for a company to hold a director liable for a breach of care that has not resulted in a damaging outcome.Therefore,provisions concerning non-property liability should be added,such as adding the forms of liability such as cessation of infringement,so as to better hold directors accountable for violating the duty of care,which is a better choice for both the company and the individual directors.Combining with the content of the subject,judgment standard and responsibility undertaking of the duty of diligence of directors,the legal system of the duty of diligence of directors can be improved from three aspects: legislation,judicature and company autonomy.In the aspect of legislation,add the specific behavior standard of duty of diligence,the right to stop claims and the law of exemption system;In judicature,the commercial judgment rule is applied indirectly through the bona fide system,and the mediation system is applied in the case of directors’ duty of care.In the aspect of corporate autonomy,conforming to the trend of the development of the theory of corporate autonomy,companies are allowed to set up relevant contents in the articles of association about the liability of the chairman to the director and the reasons for the disclaimer of the director.