| The Kangmei Pharmaceutical case in the second half of 2021,due to its billions of compensation and the subsequent "resignation tide" of independent directors,made independent directors,a rare subject of civil liability for securities misrepresentation,the focus of attention.At present,China’s provisions on the civil liability of independent directors for securities misrepresentation are subordinate to the liability rules of ordinary directors.Only in the newly issued "Several Provisions of the Supreme People’s Court on the Trial of Civil Compensation Cases for Misrepresentation Infringements in the Securities Market" in 2022,initially recognized the particularity of independent directors as the subject of civil liability for misrepresentation by setting up a special no-fault exemption clause for independent directors.In order to further explore the identification and assumption of the civil liability of the independent director of securities misrepresentation,we can start from facing up to the functional orientation,performance characteristics and conditions of the independent director in China’s corporate governance and information disclosure system,and analyze the characteristics of the civil tort liability of the independent director of securities misrepresentation in China,including the infringement of the duty of diligence,the subjective element of negligence The actual causal relationship between infringement and damage result is weak,and investment loss as damage result has its particularity.On this basis,with the scientific guidance of the theory of several persons’ tort liability,the theory of risk control and risk liability sharing,and the theory of limited compensation,this paper discusses the proper performance of the civil liability determination and assumption of the independent director of securities misrepresentation.In contrast to the expected performance of the civil liability of independent directors for securities misrepresentation,this paper combs the legislative and judicial status of the civil liability system of independent directors for securities misrepresentation in China,and explores the main problems: the confusion of the civil liability rules of independent directors and non-independent directors,the unclear determination of the duty of diligence of independent directors,the imperfect exemption and defense clauses,and the unreasonable assumption of huge liability for compensation.In addition to the local perspective,we can refer to the institutional experience of typical foreign countries,absorb and learn from the beneficial parts,and become a part of the improvement proposal.We should adhere to the principle of substantive fairness in different situations and formulate differentiated civil liability rules for independent directors,reflecting the particularity of independent directors different from non-independent directors and the different requirements for independent directors at different information disclosure stages.For the duty of diligence,which is the core element of the responsibility determination,it is clear that the independent director’s duty of diligence should be determined according to the standard of conduct,and the orderly chain of conduct covering all aspects of duty performance should be further constructed to provide a feasible way for the judge to judge the performance of the duty of diligence of the independent director of securities misrepresentation in combination with legal facts and general legal provisions.For the exemption of liability,improve the application of the exemption and defense of the rule of reasonable trust,adopt different trust standards for the content of trusted experts and non-experts,and clarify the internal relationship between the rule of reasonable trust and the determination of the obligation of diligence.In terms of the degree of liability,the independent director’s liability for compensation should be designed according to the form of fault,and the basic principle of liability attribution should be maintained,while ensuring that the proportion of risk responsibility and final responsibility borne by the independent director is equal to its due risk control ability. |
