Research On The Civil Liability Which Is Occurred By The State-Owned Enterprise Supervisor Infringes The Duty Of Care

The SOE reform has already been one of the most popular words in the strategy of deepening the reform comprehensively. After the 18th Central Committee of the Communist Party of China, the severe anti-corruption situations in the state-owned enterprises highlight the importance and necessity of the reform. In order to strengthen the supervision of the enterprises` daily operation and protect the shareholders` interests, most companies will establish the board of supervisor. Certainly, it is the same to the state-owned enterprises. However, compared with the normal companies, the state-owned enterprises have denser administrative color and much more responsibilities. The state-owned enterprise’s supervisors play the role of gate-keeper in the corporation. They need to take the important responsibilities of keeping the value of state-owned property, supervising the directors exercise their proper franchises strictly, protecting the the shareholders` s interests effectively and so on. The current legislation to the civil liability system because of the supervisors go against the duty of care is imperfect. Due to this reason, we cannot be subject to the relevant liability effectively. Therefore. I intend to have a knowledge of the relevant contents of the supervisors go against the duty of care and wish to give some suggestions of refining the civil liability system on legislation.The core content of this thesis can be summarized four parts:the deficiency in civil liability system, the analysis of the civil liability from legal principle, the comparison of different countries’system and the propose of specific suggestions.The first chapter:the deficiency in civil liability system. The state-owned economy always acts as the dominant force of national economy and has a great effect on the whole economic system. The relational datum and materials also confirm this saying. All the datum,for example, the situations of senior executive, the involved problem, the industry categories and so on, which come from the 2014 anti-corruption stoxm highlight the necessities of refine the state-owned supervising system. Surely, the special aspect which the state-owned supervisors act in conditions of employment, the selection in persons, the fulfillment of responsibilities and so on, strengthen the important research value of his civil liability system. However, few supervisors will be held accountable duties, because of the deficiency in civil liability system. And this makes having a research in liability become significant. Simultaneously, in order to make the research location and theoretical innovation easier. I have already sorted out the relevant theories on this area and have a good knowledge of the width and depth about this current issue. Base on these. I put forward to five problems, which is worth of being studied, the application in the judging standard, the nature of the liability, the accountability means, the reduced reasons, the distribution of onus probandi.The second chapter:the analysis of the civil liability from legal principle. Our country’s laws and regulations haven’t given a clear stipulation on the judging standard of the supervisor’s duty of care. Beside of this, the scholars and judges have different opinions, so there are kinds of standards in different areas. As to define the nature of civil liabilities, there are two overwhelming ideas, which are named as "the doctrine of liability for breach contract" and "the doctrine of liability for breach contract & tort ". Both of them are partial. Herein, we can establish the new theory which base on the three kinds of behavior types:the supervisors exercise the right of supervision improperly, the supervisors are idle to exercise the right of supervision, the supervisors accompany with the director and the senior executive act joint tort. Surely, when we judge the civil liability, we need to depend on the application of the imputation principle of fault liability and use the four elements:the subject of liability, illegal acts or the breach of contracts, the damage, the subjective fault. Once the supervisor’s behavior was judged as breach of the duty of care, he needs to take the responsibilities. However, the current legislation only requires him to make compensations and it lacks of the reduced reasons. Therefore, we need to refine this rule from the perspectives of autonomy of private law, the distinctions in the ability and the level, the pursuit of fairness and justice. Obviously, we should hold the supervisor accountable by sue, and it requires to distribute the onus probandi. The legal situations of the burden of proof inversion do not contain the breach of the care duty. And the normal burden of proof also violate the pursuit of legal value, so we need to reset the burden of proof.The third chapter:the comparison of different countries’system. The USA, the UK, the Germany and the Japan have already established the relatively complete civil liability system for the independent directors or the supervisors. Therefore, I make a comparison between all of them on the judging standards of the care duty, the reduction of compensation liability, the burden of proof and so on. Obviously, all of them have different distinctions and features, so when draw lessons from them, we should depend on our basic national conditions.The fourth chapter:the propose of specific suggestions. We can find that the current state-owned supervisors civil liability system has five problems through summarizing the previous contents. According to all these issues, we can put forward to the following legislative advice. Firstly, we can establish the objective judging standard for the state-owned supervisors’care duty. We also need to rule the detail of the care duty so as to remedy the defect that the care duty is too abstract. Secondly, we should depend on the specific behavior types and redistrict the nature of civil liabilities which is occurred by the supervisors go against the duty of care. We cannot choose either the liability for breach contract or the tort liability. Thirdly, we should refine the civil liability ways, increase the ceasing the infringing act and the restitution of property. Fourthly, in view of the specificity of the state-owned property, we need to add two kinds of reduced reason for the state-owned enterprise supervisors:remedial operation in time and the culpa levis. Finally, we should reset the the burden of proof for the supervisors which can be quoted by the state-owned enterprise, the shareholder or the third party, the supervisors according to the specific situations.