Study On The Problems Of Director's Duty Of Care In Stock Corporation

In the first place, it points out the present problems director's duty of care in China stock corporation on the basis of the actual conditions and concerning cases. Then it discusses the theory premises of director's duty of care, and according to the statutes and the cases it analyzes the detail content of this duty of China stock corporation. In the second place, by studying the development of duty of care of United States and Great Britain, it concludes the principle of our Business Rule of China. In addition, it discusses the operable standard of Chinese Stock Corporation from a true case. In the last but lest, it discusses the suit body—stockholder, employee, People's Procuratorate and the third part can be suit body under certain conditions.In the first, it starts from three Chinese cases, discusses the problems of director's duty of care in China stock corporation. Firstly, the relationship between director and corporate has not clear and has no judicial judgment rule. In addition, as to the responsibility of director, it stresses administrative and criminal punishment, but the civil litigation procedure is far from perfect, and the plaintiff also need nail down. Secondly, in practice China stock corporate has characteristics of powerful stockholder and weak director, so director's independent managing power often infringed by stockholder. Subjected to traditional viewpoint of responsibility, Chinese directors' consciousness for liability is not strong, and the punishment for breach is not serious as well. In the last, judge is lack of concerning view and knowledge, so it has a lot of difficult for carrying out the duty. In the second, it is the general introduction to duty of care. Firstly, it discusses the definition of duty of care, in comparison with duty of loyalty, duty of virtuous management and duty of diligent. Secondly, as to the premise of duty of care, it restricts the director to person and excludes legal person. At the same time, it points out that the director includes actual controller. Based on the different theories of the relationship between director and corporate, it concludes that it is a special commission and cooperation relation. Thirdly, it points out director should be professional, and Corporate Chart can further stipulate the extent of duty of care. Fourthly, it discusses the value of duty of care.In the third, it summarizes the articles of duty of care in other countries, discusses the detail of its content respectively from the following four duties, that is duty of skill, care, diligent, innovating, on the basis of China statutes and actual performs of the director. Then it offers litigation suggest, and proposes to build evaluation system for the implement of duty of care and credit record.In the fourth, it firstly reviews and analyzes the development of Business Judgment Rule in United State and British, by reviewing Disney case to see the trend of the rule, suggests objective rule is adopted for considering china circumstance. Secondly, it analyzes and discusses the precondition, value for importing Business Judgment rule. Then it discusses the operable rule in present China stock corporate, and analyzes a case to prove how to implement the rule. In the end, it proposes the litigation suggestion for Business Judgment Rule, and suggests on certain conditions, explorers and the People's Procuratorate can suit the carefree director. As the matching mechanism, collective suit should be improved, and the compensation cap should be set down.For completing the thesis, I have read a large number of Chinese and foreign books and papers. By using dialectic method, historic method, competitive method and case method, it discusses and analyzes the content, judgment rule of director's duty of care and suit body for breaching the duty, and proposes the improving suggests.