Research On The Legal Safeguard Mechanism Of Independent Directors' Independent Character

In recent years, with the expansion of public corporation worldwide, various corporation scandals appeared frequently. Appeal for perfecting the corporation governance is increasing day by day. To adapt to the development of time, the Chinese Company Law adjusted its corporation governance mechanism in extensive way, in which the adoption of independent director system was considered to be a kind of cardio tonic in resolving the problems of supervision to public corporation in China. However, it depends on weather the independent director system can be implemented in an effective way that the adoption of the system functions as legislators expect. And the most important is to keep the independence character of independent directors. It will not only improve the governance structure and quality of public corporation, but also strengthen the control mechanism and protect the benefit of shareholders.This thesis takes the independence character which is the key factor for independent directors, as a breakthrough point. Through explanation against the independence, it analyzes the existed problems in keeping independence of independent directors in public corporation in China. Meanwhile, it proposes some regulation suggestions to further guarantee the independence of independent directors in virtue of the practice of independent director system in China as well as the experience of England and America.The main structure of this thesis is as follows:In chapter 1, it defines the concept of independent character from the legislative intent both in China and in England and America, analyzes the three appearances of independent character such as independent qualification, independent volition and independent responsibility, and summarizes two value goal of independent character, namely formulating a balance system in directors' board and improving decision making ability of the board;In chapter 2, in virtue of analysis of Ledian case, it puts forward some serious existed problems in mechanism design and analyzes the main defects in keeping independence of independent directors in practice, including unreasonable selecting mechanism, grievous candidate for independent directors, inexplicit legal safeguard on right performance and serious phenomenon of vase directors. In chapter 3, it researches the generation of independent director in virtue of game theory, and gives an cause analysis to the difficulty in keeping independence for independent directors, such as impact of nomination mechanism, conflict between remuneration payment and independence and conflict between benefit involvement and independence;In chapter 4, it discourses some experiences of England and America from the following two aspects: the law system and the right performance environment and performance ability;In chapter 5, learning from the experience of England and America, it proposes suggestions in keeping the independent character both from the following three aspects: improving the operation mechanism of independent director, setting up an effective system environment and guarantee mechanism and harmonizing the relationship with board of supervisors.