The Discussion Of Director’ Duty Of Diligence In Our Country

As an important economic organization of the modern society, the company drives the economicdevelopment, providing jobs opportunity, creating wealth, changing social order, which play a vital role inthe economic life and cannot be replaced. However, the company also enlarges the human greed, bringingthe right imbalance and rich-poor divide and so on. With the development of the global economicintegration, the company business model is changing from the Shareholders Centrism to the Board centrism,which will be separated the ownership and management rights, with the result of weakening theshareholder power and expanding the directors power. As the company power actuator, the director andboard should use power and experience to cope with the competitive pressure and operate the companydiligent effort. However, as the economic self-interest body, the directors may have the different interestobjectives with the shareholder. What’s more, the directors may be due to the risk of moral hazard prejudicethe legitimate interests of the shareholders and the company. Therefore, almost every countries stipulate thedirectors obligation system, in order to constraint the excessive expansion of the director power, encouragethe director to service for the company and shareholders, ensure the company transactions safety andsmooth.In2005, we increase the diligence obligation terms of director in the new "company low", in whichthe terms is too principled and does not specific criterion, just play an advocacy role in the actualapplication. On December28,2013, the standing committee of the National People’s Congress makefurther correction of the current "company law" in2005, and on March1,2014, the full text altogether tomake modifications, mainly on the company’s registered capital registration system reform, but to thecompany’s directors, supervisors and senior management personnel qualifications and obligations of thechapter has not made substantial changes, just on the law order accordingly. In the past, there are so manycase of the director again the loyalty duty, its effect is very outstanding in the practice performance. Thecompany low has improved the loyalty duty more detail and perfect. In Judicial practice, there is little caseof diligence duty violation. Because, it need higher requirement for the judge and legislators to judge thedirector subjective state of mind. The overall quality of judges is uneven in our country, what’s more, the judges can not judge the director subjective state of mind when the director make business decisions, andlack the relevant experience of managing the director again diligence issues case. Worse, the currenttheoretical research about diligence obligations of director is not yet mature, not consensus, resulting in alack of determine standard about director diligence obligations.Establishing the director diligence obligations connotation and criteria, the scholars have been quite afew valuable research result, which almost from the Anglo-American and Civil law. In order to provide amore intuitive criterion for our director diligence obligations, the author choose the Australia as the analyzesamples, which balances the radical of the American Law and the conservative British Law. Analyzingand evaluating the development trend of judgment standard and development path director diligenceobligations, summarizing the higher frequency reference and the high degree of concern cases, the authorabstract the director diligence obligations judgment standard, which will be a reference for our country. Theprovision of director diligence obligations in the USA is relatively complete, it’s not only defines theperformance of their duties to prevent lazy director criteria and proposed directors of the business judgmentrule to protect the legitimate rights and interests, but also focuses on directors’ powers and obligations oforganic balance, which developed the institutional system, to further improve our diligence obligations ofdirectors provides valuable experience prospective.With the foreign advanced experience on the directors’ duty of diligence system comparison andanalysis of the status of the relevant domestic directors’ duty of diligence system, the author give somesuggestions for the building of our director diligence obligations. Making the expansion of the currentdirector diligence obligations rule, we can add a piece of law, increasing the standard behavior for thedirector diligence obligations, explaining the behavior of diligent, cautious and skill content in the form oflisted, in the no.148th of company law. Adding a piece of law in the149th of company law, which can beexplain the law scene of the director does not bear responsibility, protect the director legitimate businessdecision-making authority, the specific elements can be supplied in the form of relevant judicialinterpretation or implementation details.