Research On The Legal System Of Independent Directors' Diligence And Civil Liability

Since the introduction of the independent director system in the 90's,the system has promoted the improvement of corporate governance in China,but the effect of the system is not satisfactory.This paper will peek into the independent director system from the perspective of the duty of diligence of independent directors,our company law of 1993 does not stipulate the duty of diligence and the judgment standard of independent directors,the company law introduced the concept of diligence obligation in 2005,and made it clear that directors should be liable to the company.The independent director has its own particularity: the characteristic of the independent director's part-time character inevitably leads to the low participation degree of the company;The independent director must be the outside person of the company,and it has the asymmetry condition to the company's information mastery;the duty of diligence of the Independent Director is related to the legal special Authority The legislature is endowed with special expectations for independent directors.Based on the particularity of independent directors,this paper holds that the civil liability of independent directors cannot be generalized with other directors,and special provisions should be made.Based on the theoretical foundation of the Independent Director's duty of diligence,this paper probes into the judgment standard of our duty of diligence and the responsibility of civil liability for violating the duty of diligence.After explaining the particularity of the independent director,this paper combs the development of the standard of the independent directors ' diligence obligation,divides the specific behavior types of the independent directors against the duty of diligence and analyzes the related theoretical problems of the civil liability.As a kind of reverse incentive,the legal liability restriction is a double-edged sword,the appropriate responsibility constraint can motivate the independent Director to act cautiously and diligently,this article has carried on the research and the analysis to the independent Director's civil liability;While holding the legal responsibility of independent directors who do not properly perform their duties,it should also recognize that Excessive liability may drive independent directors to be more negative or simply flee the company,based on which this paper proposes that the limitation and exemption of Independent Director's responsibility should be the meaning of the Independent Director's responsibility system.In other words,in the case of independent directors violating their duty of diligence,independent directors who violate obligations cannot be allowed to evade legal liability,but they should not increase their liability too much,and should do so with degree of relaxation and limit the liability of independent directors in breach of diligence obligations under certain circumstances.This paper explores and analyzes the legal provisions of civil liability for the duty of diligence of independent directors of our country by reference to the legal provisions and judicial practice of the independent directors ' diligence obligations in Anglo-American law system and continental law system.This paper analyzes the rationality of the combination of subjective and objective standards,and thinks that in constructing the legal liability mechanism of independent directors,the legal liability of independent directors should not be neglected and the legal liability of independent directors should not be unduly aggravated.