| There are only simple directors' diligence obligations companies stipulated in the Compa ny Law 2005 without specific judging standard and other further level stipulations.Compared with the provisions of Britain,USA,German and Japan to restrict the behavior of directors,this part of China's corporate law is not yet mature and perfect.As the core issue of directors' diligence obligations,judgment standards not only affects the determination of the diligence obligations of the directors,but it is also a prerequisite for the directors to bear the liability.In the process of long-term corporate legislation and judicial practice,the judgment standards for directors' diligence have gradually formed three modes.The first one is the "subjective standard" model,which takes the actual ability and experience of the directors as a measure.The second one is the "objective" model of whether the directors' behavior has reached the level of attention of ordinary people in similar positions and situations.The third one is "subjective and objective" model by the combination of the first two modes.Similar to the debate in the theory,in judicial practice,there have been different cases in which different courts and judges have taken different standards for judging similar cases.Setting the time from January 2005 to December 2016 as the span,the author searched the relevant cases during this period,sorted out 22 cases involving directors' diligence obligations and analyzed the induction.Although there are few case samples,the problems reflected in the cases can not be ignored.Specifically,there are two kinds of judgment standard modes: "subjective standard model" and "objective standard model" in the courts of our country.On the basis of the objective standard model,there is a relaxed and objective diligence similar to the relaxed and objective diligence of the "ordinary cautious person" in the United States,similar to the strict and objective diligence of Japan's "good managers".Moreover,China's "Company Law" and the judicial interpretation do not provide "business judgment rules".2However,in the case of the author's collection,there are referees in which the court invokes the rules of commercial judgment.There are many problems in the application,such as,the strict implementation of the rules of commercial judgment rules and the scope of application of commercial judgment rules.The emergence of these problems shows that our courts have not yet formed uniformstandards in the judgment of directors' diligence obligations,resulting in a very different outcome of similar cases.The adoption of a loose standard decision will make the directors from liability,but does not protect the interests of the company.Strict standards of the decision will make the directors bear too much responsibility to increase the professional risk of directors.The uncertainty of the judiciary is not conducive to the protection of the legitimate rights and interests of the company and shareholders.Hence,it is very important to unify the referee's path and standards.This paper tries to find out the problems in the trial practice of our country by analyzing the status quo of the diligence obligation of directors and the judgment standards of directors' diligence duty.Combined with the United States and other countries' relevant legal experience,this paper tries to provide suggestions for the perfection of the duty judgment standard of the directors in the company of our country.In addition to the introduction and conclusion,this article is divided into four parts with about 21,000 words:The first part mainly expounds the theoretical problems of directors' diligence obligations.By comparing with the loyalty obligations of the directors,it is stated that the directors' diligence obligation means that the directors should actively and diligently work diligently in managing the affairs of the company and do their best to seek commercial interests for the company.The directors' diligence obligations have the function of compensating the victims and the company,curbing the negligence of the directors and guiding the behavior of the directors.There are three main models for judgment standards of directors' diligence.The first one is the "subjective standard" model,which takes the actual ability and experience of the directors as a measure.The second one is the "objective" model of whether the directors' behavior has reached the level of attention of ordinary people in similar positions and situations.The third one is "subjective and objective" model by the combination of the first two modes.The second part mainly explains the legislative status and problems of the diligence obligations of directors in our country.The legislative provisions on the diligence obligations of directors in our country are scattered in the laws and administrative regulations,the less effective departmental rules and other normative documents.This paper analyzes the legislative provisions on the dilution obligations of directors at different levels of effectiveness,and points out that there are the following problems in the judgment standards of diligence obligations of directors in China: the relevant provisions in the normativedocument are cluttered;a specific judgment standard model is not established;there is lack of appropriate disclaimer.The third part mainly analyzes the practice and problems of the trial practice of the directors' diligence duty judgment standards.This paper analyzes and summarizes the referee paths of 22 cases of judicial cases involving directors' duty of diligence,and divides 22 cases into four types: the judgment adopted the subjective standard model,the judgment adopted the objective standard model,the judgment used business judgment rules and the judgment which can't be judged by any judgment standards.This part mainly analyzes the first three types.This part summarizes the following problems in judicial practice through case analysis:the chaotic situation that different courts take different judgments,abuse of business judgment rules exemption function,different judgments in similar cases and so on.The fourth part mainly puts forward some suggestions on the problems of judgment standards of directors' diligence in our country.It is pointed out that China's legislation and judicature on the judgment standards of directors' diligence should be perfected from three aspects: refine the specific behavior of diligence obligations in the Company Law;establish the objective primarily and subjective secondarily judgment standard model in the Company Law;set the exemption system through judicial interpretation,that is,to introduce business judgment rules.The value and status of directors' diligence obligations in the corporate governance structure can not be ignored.Judgment standards are at the core of the diligence obligations of directors.It is very important to set a reasonable judgment standard that can balance the interests of the stakeholders in the company and promote the efficiency of the company's management.However,those simple and inoperable stipulations for directors' diligence obligations in t he law of our country,which results in many problems in judicial practice of our country This paper points out the problems in the path and rules of judicial decision in our country through the statistics,induction,and analysis of the cases.It provides practical material for the theoretical analysis of this article to better combine the theory and practice. |
PDF Full Text Request