A Study On The Legal Issues Of The Independence Of Independent Directors In China 's Listed Companies

Independence of independent directors is the core and soul of the independent director system, since introduced independent director system to China, however, independence of independent directors have been questioned in practice, this paper is based on the implementation situation of the independent director system in our country, combining with the characteristics of ownership structure of listed companies in China, analyzes influencing factors of our independent director’s independence, and in view of the factors influencing the independence of the independent director puts forward the path to solve the problem.This paper is divided into the following four parts except the introduction:The first part is putting forward the problem. This part includes two sections. The first section mainly introduces the theoretical foundation of independent director’s independence in the Anglo-American law system. First of all, in the second quarter by summing up during the period of 2009 to 2013, the CSRC 42 pieces on the board of directors of the listed company the content of the penalty, lists the common cause of independent directors punished. Secondly, based on other scholars on the survey data of the independent director practice in our country,analyses the status of the independent director in China.Finally concluded that the independent director system in our country’s most prominent problem is the lack of independent director independence, and is decomposed into three subproblems.The second part is independence for selection. This section is divided into two sections, the first section firstly analyzes the problems existing in the negative qualifications of independent directors, think negative qualifications prescribed too narrow for independent directors in our country. Second positive qualification for independent directors in the problems and the number of independent directors part-time problem analysis. Finally in the election of the independent director system in our country to nominate and vote problems were analyzed, and the thought of our country’s existing electoral methods is difficult to guarantee the independence of independent directors. First mentioned in the first quarter in the second quarter of the independent director qualification problem puts forward some Suggestions to perfect, think should prolong the desensitization of the independent director and the social relations into the investigation object of independent director’s independence, at the same time pointed out that in terms of independent director qualification shall be age, and whether to have the accounting or legal professional as investigation object, and suggestion of retired officials act as independent directors limits accordingly. Secondly, this section through the analysis of the electoral system abroad, according to the situation of our country in terms of choice of independent director’s electoral system, system of voting rights shall be avoided as a compulsory license to relevant laws and regulations.The third part is the independence of perform their duties. This section is divided into three, the first section firstly analyzes the independent directors’ informational rights the reason of unable to exercise. Secondly, puts forward four suggestions for perfecting independent directors’ informational rights. First of all, to our country independent director in the second quarter disclosure obligation is the analysis of existing problems, think that the disclosure obligation orientation for independent directors in China are fuzzy, in which the independent directors in practice delayed in or not independent disclosure obligations; Also point out that our country to the independent directors’ duty of disclosure lack corresponding rules. Secondly, puts forward Suggestions for constructing the independent directors’ duty of disclosure, think on the contents of disclosure obligation shall be guaranty, raise funds use, social public offerings shareholder protection, merger, acquisition and reorganization, major investment and financing activities, financial management, executive compensation, profit distribution and other information, the CSRC shall be in terms of objects and small and medium-sized shareholders for disclosure obligations. Third section first analyzes our country independent director civil liability problem, think our responsibility to form a single, exemption system is not sound, and points out that in the independent directors accountability should pay more attention to civil liability, and at the same time when we stricture on independent directors who did not perform legal obligation, should be considered when the independent directors are to waive or reduce its responsibility, otherwise too strict liability system,will make the people who have the ability to be the independent director given up,this may lead to lack of human resources market. Secondly combining the analysis of our country independent director liability problem put forward the corresponding advice, think shall improve the independent director civil liability, by introducing the business judgment principle, set up independent director liability insurance system to improve the independent directors liability problems.The fourth part is the independence of special committee. This section is divided into two sections, the first quarter panel on the board of directors of the listed company of our country in the analysis of existing problems, first of all, the special committee of the board the proportion of independent directors on the low side of a malpractice is independent director in the executing process easy to lose its independence, rely mainly on the judgment of the other independent directors; Second ignored the chairman of the board of directors and major shareholders to nominate directors in technical committee of the restrictions, no doubt for the independent director leadership committee added a disorder, or for chairman of the board of directors and major shareholders to nominate directors actual control provides a door to the special committees. Improving Suggestions are in the second quarter, think in terms of improving the independent directors proportion, should develop to build a reasonable proportion of independent directors and independent directors of human resources market, the guarantee of independence of independent directors in the special committee; In limited scope of large shareholders to nominate directors took office, according to the regulation of the implementing rules for the panel on the board, think that big shareholders shall be limited to nominate directors other than the strategy committee qualifications of other special committees.