The Evaluation Criteria Of The Directors' Duty Of Diligence

Improve the system of director's obligation is a key issue in the modern corporate governance.In year 2005,revision of the "company law" in the directors' duty of diligence system is introduced for the first time in our country.Regulation 148: Directors,supervisors and senior managers shall abide by the laws,administrative regulations and articles of incorporation which responsible for the duty of loyalty and diligence obligations to the company.This regulation aims to strengthen justiciability of the company law and provide relief mechanism for the company when directors are not performing the transaction management decisions in the right way and causes loss to the company.Diligence obligations require directors making business decisions which subjective behavior must be based on the interests of the company as a starting point,by fitting the condition of the company and fulfill the reasonable degree of attention to perform their duties.If company directors fulfill their duties without reasonable diligence and this reason cause a loss for the company,then directors themselves should assume liability to pay compensation to the company.This system embodies the progress of our country law.But in year 2014,the latest revision of the company law of the system did not make modification and supplement,these rules are principle and abstract,the content and judgment standard for diligence obligations did not make clear and specific provision.This creates the court have no supporting laws as the judgment basis and different courts on the principle of the phenomenon when trailing of company directors' duty of diligence related cases using different judgment standard.Through the study of the company law,we found that common law countries research more deeply in directors' duty of diligence criterion.This problem in theory practice in a long-term development with the discussion and communication then summarizes a large number of cases to the provisions of the laws of relevant to constantly change and make this a standard improvement.Continental law system country in its legislation explicitly stipulated the director owes a duty of diligence,more stringent made the judgment standard and provides a more clear direction.So judgment standard plays the core of the directors' duty of diligence,it is to protect the legitimate rights and interests of company and shareholder,director specification management behavior.This expounds the theoretical foundation of the company directors' duty of diligence and judgment standard.Also distinguish between the obligation and duty of loyalty and diligence to avoid the confusion of two kinds of obligation system.Using the comparative method to investigate the Anglo-American law system and continental law system,It is concluded the reference to perfect the system in China.Through the status of our country,analysis the insufficient and the reasons,then put forward constructive suggestions.Complete the directors' duty of diligence judgment standard system,is not only standardize director's own business supporting well for the company,but also good for the complement and development of modern corporate system.