On The Diligence Obligation Of Independent Directors Of Listed Companies

Independent directors are special types of directors different from internal directors,and their diligence obligations should be different.However,the content of the duty of diligence in China’s Company Law is only a principled expression,and it is difficult to determine the boundaries and standards of independent directors’ diligence,and judicial application has always been facing challenges.At the time when the revision of the Securities Law came to an end and the revised draft of the Company Law came out,it is an important task for the reform of the commercial field and the development of listed companies in China to improve the diligence obligation of independent directors and fill the hole in the independent director system in China.This paper mainly discusses the connotation,standard,responsibility and relief of the diligence obligation of independent directors of listed companies and gives the countermeasures to solve the problems.Starting with an overview of the diligence obligation of independent directors in listed companies,this paper introduces the independent characteristics of independent directors through the introduction of the concept of the diligence obligation of independent directors,and further digs out the particularity of the diligence obligation of independent directors based on this characteristic.After discussing the theoretical basis of the diligence obligation and the theoretical choice in China,it summarizes the practical significance of the performance of the diligence obligation of independent directors.Based on the summary,this paper continues to introduce the current situation of the diligence obligation of independent directors in China,including the current situation of relevant regulations and some influential and representative cases in recent years.The relevant provisions are mainly described in layers by combing China’s laws,administrative regulations and industry self-discipline norms,and the case part combs and integrates the contents of the CSRC’s administrative punishment decision in the past three years.After combing and introducing the existing regulations and cases,this paper gradually probes into the problems existing in the diligence obligation of independent directors in China.The boundary of independent directors’ diligence obligation is unclear,which is mainly manifested in the unclear explanation of its connotation;There is a problem that the criteria for determining the diligence obligation of independent directors are vague,which is manifested in that the criteria for whether independent directors have fulfilled their diligence obligations in China are mostly macroscopic and principled,and there is a lack of refinement of the criteria;At present,there is also a lack of regulations on the rights protection and liability limitation of independent directors in China.Because the independent director system did not originate in China,and the legalization of the system has developed rapidly in recent years,it has caused the situation that the system changes are out of touch with the corresponding safeguard measures to some extent.There is still a lack of relief for independent directors to perform their diligence obligations.In view of the unclear boundary,the connotation of independent director’s diligence obligation should be clarified.In order to solve the problem of vague standards,we should clearly refine the consideration factors of identification standards,distinguish independent directors from internal directors in the subject standards,and formulate different standards for performance of obligations according to different types of behaviors.In view of the imbalance of power and responsibility,we should focus on protecting independent directors’ right to know,limiting independent directors’ liability by using business judgment rules or articles of association,and improving the basic system of independent directors to enhance their independence.In view of the lack of remedies,we should improve the liability insurance system for independent directors,establish the personal bankruptcy system for civil liability and relieve the burden of proof for independent directors.