Jurisprudential Study Of Corporate Governance

A corporation, from the legal point of view, is a bundle of rights and duties by nature. Corporate governance is to make an institutional arrangement of rights and duties for the shareholders, directors, supervisors and officers. From the perspective of institutional economics, a corporation is a contract in nature. Corporate governance is an approximate balance among all the corporate participants in their contest for resources of rights and duties. Corporate self governance theory holds a negative view, compared to a positive one from the rule of law theory, towards the question whether the result of the corporate participants'contest or gambling could be under control, and even be changed with the outer intervention. This thesis argues that corporate governance is a hybrid of corporate self governance and outer intervention. Outer intervention would, to some extent, contribute to optimize the corporate governance. Efficient outer intervention rests with the selection of a proper cut-in point and a key point as well. The cut-in point of the outer intervention refers to people's behavior. Behavioral Science is a starting point of all economics and law schools. Economics is targeted for explaining behaviors while law science for shaping them. Corporate governance could only be realized by corporate governing behavior. Selection of behavior is subject to the motivation of behavior, which has its own cause. An alteration to the cause may lead to a change of the motivation, and a different result of behavior thereby. The dominant cause of the motivation of behavior hence becomes the key point of the outer intervention. As far as the corporate governance is concerned, damages liability of civil law stands in the core of the outer intervention of corporate governance. Corporation is a typical for-profit legal person of mass organization that seeks for business profit. Accordingly, corporate governance's objective is to realize property right (performance). Being economic personnel, Corporate governance participants always take cost into consideration when selecting behaviors concerning about property rights. Property right repels property accountability. Therefore, it is not surprising to find damages liability, which is the core of property accountability, serving as the cause of the motivation of corporate governing behavior. The key point of the outer intervention of corporate governance thus lies on the introduction of damages liability, with an attempt to alter the motivation of behavior, and finally direct the selection of behavior. In contrast to administrative liability, criminal liability and other civil liabilities, damages liability possesses predominance in corporate governance. Taking behavior and damages liability as a cut-in point and a key point respectively, this thesis builds the logic of the corporate governance, as thefollowing diagram shows: This thesis includes five chapters. The first chapter discusses the interactive relationship between damages liability and corporate governance, with the purpose of forming a base for the establishment of damages liability in corporate governance.The second part illustrates the nature of damages liability, as well as its justification and structure. Pluralism on the nature of legal liability offers wider room for the development of legal liability system. It equips theoretical support for the construction and expansion of modern damages liability system in general, and for its justification in particular, which is of great significance since only justified damages liability is taken as efficient. This is particularly true in the case of intervention of corporate governance—substantive laws in this regard are provided, with the establishment of various kinds of damages liabilities as...