The Liability Principle Of Company Directors' Civil Liability

Since 90's in the 20th Century, the company governance theory has also received great attention in China by the academia and theorists. Improve the company's responsibility system and the accountability mechanism is generally considered to improve corporate governance in China is an important content. At present, the civil liability system on the development trend of the directors, there are two different points of view, the United States to strengthen the director's accountability system after the Enron, while Japan has relaxed restrictions on director liability trends. Because of the lack of effective accountability system of director in "Company Law" of China, in real life operators'responsibility, rights and benefits are not clear. When the directors'act caused losses to the company, the liability of directors can not be pursued. When the director's conduct caused loss to a third party that is also very difficult to achieve through their own efforts to protect their own interests. On January 1, 2006 the new "Company Law" was published, although it includes the liability of directors and shareholder derivative suit, it strengthens the company's responsibility. But it only completed the first step of accountability mechanism of directors. For a long time we lake the traditional autonomy of private law. The full accountability mechanism of the directors has not yet completed. The obligations and responsibilities of directors, in particular, civil liability is only prescribed by the Company Law appear absence of actionability. Therefore, how to establish the accountability mechanism of directors is still before us as a serious problem.In this paper, Civil Responsibility of Directors for the study, combined with domestic legislation and case law, the Principle of Liability of directors conducted a more in-depth research. This paper described the following four aspects:The first part, this paper describes the structure of modern governance and the obligations of directors. No obligation, no responsibility. Obligations of directors to liability for breach is a prerequisite. Director of property management companies and operators, as trustee, first of all, they have to the company, "loyal", specific to the Companies Act is liable on a strict duty of loyalty; their production, they also have "due diligence", which is the Company Law and duty of care under the Articles of Association.The second part, the paper introduces the breach of duty by the directors liability. Breach of duty by the directors responsibilities including the responsibility of the directors and directors of the company's liability to third. National company law are liable to the company directors to be provided. Directors violated their duty of loyalty or duty of care, should bear civil liability to the company. Outside directors of the company's third with no legal relationship, when the director harm the interests of the third set, the third may be held based on violations of the general director of Tort Liability. However, in recent years to better protect third parties from being directors of wrongdoing against many countries, the Third Law of the responsibility of the directors made a special provision.The third part, the paper introduces the subjective element of civil liability the directors held that the directors of civil liability. Throughout the national legislation or jurisprudence, Civil Responsibility of Directors to the main principle of fault liability, the principle of no-fault liability as an exception. Meanwhile, the directors violated the principle of duty of loyalty Liability fault presumption should be adopted. Be noted that in 2005 the newly established "Japan Company Law", will be in the past director of the company based on the Principle of Liability by the strict liability principle to the principle of fault liability. Hold the director of civil liability for breach of duty of care, the operating principle of the directors to judge whether the breach of duty of care played a significant role, operating principles in a positive way to judge matters of principle that a director without the completion of due obligations of responsibility situation in which the directors are not operating to their duties in the implementation of all the errors committed liability, but merely to make business judgments in the conduct of its subjective existence when "fault" or "gross negligence" would bear the legal circumstances responsibility, is also on the provisions of the Principles of Responsibility.The fourth part, the paper introduces the Perfection of director liability regime. Establish and improve the responsibility system of directors, provided only that the obligations and responsibilities of directors is not enough, more importantly, to establish a complete set of accountability mechanisms, and through this mechanism in turn, acts on the company's directors be restrained. Should strictly distinguish between breach of duty of the directors duty of loyalty and breach of duty, from the company, shareholders and the interests of the community, appropriate to ease the responsibility of breach of duty of care is necessary. In view of the current situation, should the first director of the provisions of the specific obligations of richer, and the breach of specific obligations. In fact, the judge should be reasonable to introduce the principle of operation, establish a sound system of management responsibility of directors.