Legal Positivist Study On Fiduciary Duty Of The Senior Manager In China

The new revised Corporation Law of China in 2005 has greatly improved on the legislation concerning the fiduciary duties of corporate senior officer, which includes director, supervisor and senior manager, to the corporation comparing with the former Corporation Law. One of its manifestations is the express stipulation of"the duty of care"and"the duty of loyalty", owed by the director, supervisor and senior manager to the corporation, and of the stipulation of according injury compensation liability. Although the new revised Corporation Law is more concrete and practical than the old one, but it still has some deficiencies which need to be revised when compared with the developed legal system of the fiduciary duty stipulated in the British and the U.S.A.As to the duty of care, the deficiency in legislation is there only exists one general provision on the stipulation of duty of care, which makes it hard for court and the parties to comply with, so I suggest that we should mainly adopt the object-dominated criterion and along with the inspection of the concrete agreements of the two parties, at the same time we can also list some typical conducts which breaching the duty of care. The deficiency in judicial practice is the excessive judicial substantive examination on commercial decision made by the corporate senior officer and our courts are used to play strong roles in intervening the corporate inner governance. So I suggest that we should introduce the normative Business Judgment Rule which mainly used in the U.S.A, in order to maintain the balances between the judicial intervene and the corporate autonomy.Compared with the simple judicial practice of the duty of loyalty, it makes more sense to study the deficiency in our legislations. Take the anti-self-transaction between the corporation and the senior officer and the forbidden taking of corporate opportunities for examples, both of them have no procedure stipulations on the interest-relationship information disclosure duty and withdrawal duty about the owed by the interest directors and shareholders. So, as to me, we should perfect the aforesaid procedure stipulations in our future legislation on the exemption clauses of the loyalty duty.Apart from the preface and the conclusion, this paper consists of five parties, whose concrete contents are as follows:The first part is mainly about the origin and corporate evolution of the fiduciary duty, and its definition, that is, a duty comprised by the duty of care and that of loyalty owed by the corporate director, supervisor and senior manager to the corporate to act in good faith and for the best interests of the corporation.The second part is mainly about the legislation and judicial practice of British and the U.S.A about the director's duty of care.The third part is mainly about the legislation and judicial practice of British and the U.S.A about the director's duty of loyalty.The fourth part is mainly about the legislation and judicial practice of our country about the senior officer's duty of care, also with the deficiency, and the further relevant legislative and judicial perfect suggestion.The fifth part is mainly about the legislation and judicial practice of our country about the senior officer's duty of loyalty, along with the deficiency, and the further relevant legislative perfect suggestion.