The Duty And The Responsibility Of The Supervisor Of Limited Liability Company

Since the company system has been set up, with separation of the enterprise's operation rights and ownership, because of abuse of the management power, it must put up effective supervision and regulation to the management power in the company. Britain and American's law system and continental law system established the internal supervision mechanism. The internal supervision model went through the times because of the difference of the tradition and the culture in this two law systems. Germany as a typical of the continental law system, initiative established a supervisory board system in the legislation, by means of random rules mode. The supervisory board system was admitted by others countries of the continental law system soon after. Each country's legislation is difference in the supervisory system's inheritance and development because of the difference between legislation's times and cultural environment in various countries. At the same time, as modern company legislation pay attention to the "company's social responsibility", the civil liability of the third party is considerable developing in the advanced legislation, such as Japan, Taiwan company law cases, it were established on the civil liability system. about the supervisors to the third party。Our country "company law" (1993) imitated the supervisory's system, amendments to the "Company Law" in 2005 still continued of the legal tradition, provides the board of supervisors as to the legal authority must be established (except the smaller companies).But with all kinds of problems are shown in the corporate governance, especially the supervision mechanism is undesirable, practitioners and academic had a "suspicion" to the supervisory's system of the continental law system, worse someone said "weakening the supervisor's system". The supervisor's system has its own reasonable and necessary, the root of the problem is how to improve the shortcomings of legal system, solve the existing practical problems and effectively improve the supervisor's system to meet the purpose of the supervisor's system as the supervisory authority of the company law.Looking at other major continental countries or regions, they adopted the supervisor's system of company legislation, the system in the legislation design is very different, however, almost all of the specific legislative system to faithfully and diligently as the core of the supervisor's obligations, further expand the provisions, to established a obligations system with tightly and logical. And in the design of the supervisor's obligation system, demonstrated in a certain degree of legislative technical maturity and legislative concept's advanced. Such as Germany, Japan and Taiwan, in the setup of the supervisor's responsibility had a comprehensive set of rules of the responsibility to determine, it can easy to identify the responsibility of supervisor constituted in judicial practice, and also provides for the directors, supervisors and senior management of the joint and several liability, raised higher accountability requirements of the supervisor.The supervisor's system on China's Company Law, the biggest shortcoming of the obligations and responsibilities of supervisor is that institutional weaknesses shown. China's legislative system in the design of the supervisor's system also affirmed the faithful and diligent obligation of supervisor, and these two obligations as a matter of principle, general obligations, as a way to build responsibility of the supervisor to the company, but it does not sure supervisor's responsibility for other related subjects, and is also not established supervisors and directors and senior executives joint and several liability in the area of responsibility. With the "corporate social responsibility concept" in-depth, supervisor should not be limited obligations of Company, and compared to other advanced countries'company law, there is also a lack of supervisor liability waiver system and the lack of standards and rules to accurate judge supervisor against responsibility that which need taking responsibility, these are the reality performance of China's lack of supervisor's system. So to make up for the shortcomings of supervisor's system is becoming the important part of the activities of company legislation, in the improvement of the supervisor's system, the current board of supervisor's system is essential for the content, in the extension supervisor'responsibilities and the expansion of the supervisor'obligations, at the same time should also be built up supervisor liability waiver system, improve the criteria for determining the obligations of supervisor,to ensure accurate application of judicial practice.