On Liability Company Directors And Directors

In the modern management organization of the company shows out facts, that the positions of the company board of directors and his director are more and more higher, their function is more and more bigger, their rights are also extended everyday. Their behaviour has a very big influence on the benefits of company and shareholders. The relation between the directors and company with his shareholders, the director's right, duty and its law responsibility are always in a hot topic in the theories and lawmaking practice of company law. This article carries on some researches to the director of the company and its law responsibility from three aspects.The first part concerns "the general analysis about the company directors ". This part analyses mainly the concept, function, conditions for deputing and positions of the company director. To the meaning and functions of director, the author thinks, the director is a member of the company board of directors, is the individual performance organization of the company and also the individual organization of the company. He is very important in the company. About the director's position, through the comparing analysis between the " theory of appointment" and" theory of surrogate" from continental law systems and " theory of surrogate and trust" from Anglo-American law system, the author thinks that all these various theories can not completely generalize the director's position in company. The position of director should be a kind of legal" position in the company.The second part concerns " the director's rights and duties". The rights and duties of a director are embodiment of the directors' positions in the company law. It is also the foundation for his law responsibility. The author thinks, it can't be simply thought, that the right of the board of directors is same as the director's right. The director as a member of the company board of directors, his legal position and functions decide, that he should have his own independent right. Otherwise his duty and responsibilities could have no basis. The director's" right, responsibility and benefits" would become to lose the balance because of this. So the company law should make a provision from the lawmaking to give a definition to director's rights. Concerning the director's duty, through the comparison between theories of duties of the director in both law systems and the lawmaking practice, the author thinks, in the director's dutyof faith, the company lawmaking in our country should extend the applications area and the exceptions of forbid of business competition and ego trade, perfect the permission process in forbid the competition and ego trade. At the same time, breach of the board director to the faithful duty and the attention duties result in company of loss should undertake the civil law compensatory responsibility to the company.The third part concerns "the director's civil responsibility". The usage of the right and the performance of the duty need protection from the maturity of the responsibility system. The company lawmaking of another country also builds up the perfect responsibility system by the time of establishing the right of the director and the structure of the duty, to guarantee the usage of right and completely performance of the duties of director's. The board director's responsibility includes the administrative responsibility, the criminal responsibility and the civil responsibility. These three kinds of functions of responsibility are not the same in the different places. Because the reason of the article contents, this text discusses the director's civil responsibility only, including the civil responsibility to the company and to the third people. At the same time the author thinks, the company law is the special law of civil law, should increase the rules about civil responsibility, overcome the current trend to look down upon the criminal and civil responsibility. At this part it analyses the nature of director's civil responsibility first. The author means, the nature of the director's civil responsibility to the company should be a kind of " the special responsibility from the specially rule of the company law "; But to the nature of civil responsibility to the third person should be a kind of" the legal responsibility ", and a kind of joint and several liability, but not the independent liability of the director. The second, the composing conditions of the responsibility of the director to the company and the third people are also been analysed on the basis of lawmaking and practice of the company law. It enumerates the situations in which the director to the company and the third people should undertake the responsibility. Finally from the aspect of the lawmaking the civil responsibility of the director in our country's company law should be perfected from points of the distribution of duties, the exemption mechanism and almsgiving mechanism of company's shareholders and etc.