Research On The System Of Civil Liability Of Company Directors

Directors are the necessary members to executive corporate business, and elected by shareholder meeting (or supervising meeting). In authors' opinion, according to the background of legislation model and culture tradition, the corporate law is better to follow the commission theory in our country. Though about the relation between the directors and corporation, there are difference theories: quasi trustee theory, agency theory, commission theory, and agency and trust mixing theory. Directors have the duty of loyalty and duty of diligent for the corporation and shareholder. The civil liability of directors is a law consequence that must be bear as directors broke the legal duty, corporation rules or decisions of shareholder meeting and board. It is mainly a kind of property accountability. The directors' liability is mostly a civil liability director to corporation, and to the third party. The meaning of the system of the civil liability of directors is that: this system can strengthen the restriction and supervision to the directors' action, and promote to form a good corporation' s management policy. Additionally, through the running of the civil liability of directors, and paying for their responsibility will be favorable to the legal right of corporation, shareholder, debtee and other the parties concerned. The system of the civil liability of directors is the corn of corporation's management.The contents include:The first chapter Summarization of the legal status of directors of a corporation. In this part, instrument the definition of director, the doctrine of actors, the doctrine of corporate bodies, the doctrine of double identity, as well as authors' opinion: the following statements of directors should be similar, 1. Directors are selected by statutory procedure. 2. The directors are the members of the board. The board is a necessary institute of a corporation. 3. Laws and regulations, a single shareholder resolutions of the General Assembly may authorize the executive director to fulfill the duties of the business. Directors are the executive institution of corporate business. Director does not certainly have the property as enforcement agency of operation, because in world countries, normally legislation establishes the board as the congregate enforcement agency. That is in world countries not endow the director with the direct right of operation execution. The legal relation between director and company, quasi trustee theory, agency theory, commission theory, and agency and trust mixing theory, as well as the authors' opinion all be introduced in this chapter. The authors' opinion is that: the legislation model and theory in different countries have their own background and culture, and have their own extent rationality and value. In continental law system countries, the relation between directors and corporation can be seen as a kind of quasi trustee relation. Finally, the book analyzed the basics of legal theories of directors' duty, the duty of loyalty and the duty of diligent, as well as the relation between the two duties. This made a preparation for the confirming of the civil liability of directors.The second chapter the civil liability of directors. In this part, the concept, category, and range of the civil liability of directors are defined. From the angel of subject of right, the different ideas of the two kinds of duties, the basics of legal theory and main contents are presented. The principle of dividing responsibly of the two kinds of civil liability is analyzed: the existence of damage activity, subjective mistake, damage results, and a causal relationship between the damage activity and damage results. The author believes that the responsibility of directors of the company may be both a breach of tort liability, should clearly define the responsibilities of each character; director of the civil nature of a third person is a statutory responsibility and liability associated with the company.The third chapter The Investigating of civil liability of directors. The lawsuit channels of the civil liability of directors are introduced. They include corporation' s direct lawsuit, shareholder' s derived lawsuit, and shareholder' s direct lawsuit.The fourth chapter Exemption and exoneration of the civil liability of directors. This article points out that director should not overtake the damage incurred by commercial risk in management meanwhile, it concludes that we should establish institution of exemption from liability of corporation director to promote the development of company system. legal exemption, exoneration by party autonomy and liability insurance for director should be included in the sound of system foe exemption from liability of corporation director. So, instituting the business judge role and improving the exoneration from liability of exception director are the key to corporation governance structure. At the same time, we should try to perfect the liability insurance for director.The fifth chapter The consummation of the civil liability of directors in China. Analyzed the actual state of the civil liability of directors: 1. the new Corporation Law embodies the principle of autonomy of the company to ensure the safe operation of the company. improve the corporate governance structure of the framework design. 2. The new corporation law defined the general rules of Directors' loyalty and diligent duties, however it lacks the detailed contents of diligent duties; 3. There is no directors' demission duty, though has the directors' duty; 4. In reality, the director cause damage to the third part repeatedly. But the new law has no identify regulation on it; 5. In market economy, the directors' corporation business has high risk. According to the rule of the congruence of rights and duties, the law should preserve directors' position behavior fairly. That can ensure the corporation working at peak efficiency stable, and maximize the company's interest; For this, the author propose how to consummate the law in four aspects: 1. Identify the directors' loyalty and diligent duties with summarization and enumeration. 2. Affirm the directors' emission duty. 3. Identify the duties between directors to company, and to the third part. 4. Consummate the rule for directors duty insurance and directors' free duty.