Research On The Liability Of Independent Directors In Securities Misrepresentation

With the increasing number of securities false statement cases,the amount of compensation responsibility borne by independent directors for investor losses in such cases has also become increasingly large,especially after the Kangmei Pharmaceutical case,the strong responsibility of independent directors has caused widespread discussion.2022 is the year when the risk of independent directors performing their duties has been raised to a high level of importance.In addition to the representative litigation and accountability procedures,independent directors face higher risks of civil compensation liability while facing stricter administrative responsibilities.Due to the historical origin of imported independent directors and the difficulties in fulfilling their duties in reality,the independent director system in China has been criticized for being "not sensible and not independent" for a long time.In April of this year,the State Council issued the "Opinions on the Reform of the Independent Director System of Listed Companies",and the China Securities Regulatory Commission subsequently solicited opinions on the management measures for independent directors,ushering in a comprehensive reform of the independent director system.However,the localization of the independent director system in China still has a long way to go.We should return to the functional positioning of the system and build a mechanism for protecting independent directors,in order to achieve the institutional value of unified rights and responsibilities.The current legislation and judicial practice place the responsibility of independent directors under the perspective of the responsibility of company directors.In practice,there have been different forms of responsibility judgments,and independent directors,as external supervisors,lack a accountability system that is different from other groups of directors.Therefore,the principle of supplementary responsibility for independent directors should be clarified,and a system of equivalent liability should be established.Diligence obligation belongs to a general concept in securities law,but it is directly related to the degree of responsibility assumed.It is an important basis for judging whether directors have faults in theory and practice.Diligence obligation should pay more attention to the evaluation of the overall performance status of independent directors,and a clear standard is needed to judge.In determining whether to fulfill diligence obligation,the degree of fulfillment of diligence obligation should be accurately determined in a limited and promising scale.At the same time,it is necessary to strengthen the supervision of the daily performance of independent directors,and establish fault-tolerant and exemption mechanisms such as director liability insurance.In short,the obligation of independent directors to be diligent and responsible has been raised to a higher dimension,requiring them to seek their positions and increase the risk of fulfilling their duties.It is necessary to solve the problem of power responsibility mismatch,improve the risk dispersion mechanism,and provide important guarantees for independent directors to actively perform their duties.