Font Size: a A A

The Research Of Director's Duty Of Care

Posted on:2019-02-09Degree:MasterType:Thesis
Country:ChinaCandidate:Z E WangFull Text:PDF
GTID:2416330566960990Subject:Economic Law
Abstract/Summary:PDF Full Text Request
The directors of the company have a decisive position in the process of corporate governance,and their business decisions have a major impact on the company,which in turn affects the interests of the shareholders.However,due to the fact that China's current "Company Law" only makes a general definition of the diligence obligations of the company's directors,it is difficult to provide a strong legal basis for the judgment in judicial practice.Therefore,there is a certain theoretical and practical significance for the study of directors' diligence obligations.This paper intends to study and discuss the present situation and inadequacies in the legal and judicial aspects of the company's director diligence system through comparative research and empirical research.It will draw on the theoretical and practical experience of the board of directors,the United States,Britain,Japan,Germany and Germany,combined with the actual situation in China.National conditions,put forward corresponding improvement suggestions.In addition to the introduction and conclusion,the text consists of four parts:The first chapter first elaborates the meaning of the diligence obligations of the company directors.On the basis of reference to the provisions of the United States"Standard Corporations Law" on directors' diligence obligations,the concept of"prudent and reasonable person" was introduced to define the definition of diligent duties of directors.Combined with classic cases such as Francis and Hewlett-Packard cases,summarizing and summarizing the contents of directors' diligence obligations specifically include skills obligations,diligence obligations,and cautionary obligations.The second chapter analyzes the status quo and insufficiency of legislation and judicial system of directors' diligence in China.Through a brief review of China's current laws and regulations concerning directors' diligence obligations,the analysis concludes that the lack of specific judgment standards and liability systems in our country's directors' diligence obligations system is not perfect;through an empirical study of representative cases of diligence obligations in China's directors,The analysis pointed out that the system of diligence of directors in China lacks a unified judicial review rule in judicial practice.Some judges quoted the rules of business judgment in judicial practice,but they did not have corresponding legal basis,and there was a problem that legislation was behind practice.The third chapter is the legislative suggestion on perfecting the diligent duty system of company directors in China.First of all,the article compares the objective standards of loose US,the combination of the subjective and objective judgments of the United Kingdom,the strict objective judgment standards of Germany,and the Japanese eclectic judgement standards.Taking into consideration the long-term development of China's legal system and company system,the article proposes establishing objective standards.The legislative recommendations of the eclectic judgment standard supplemented by subjective and subjective criteria.By summarizing and analyzing the classic cases of diligence and duties of directors such as the United States Van Gorkom case,the objective criteria for the determination of skills obligations,hard-work obligations,and duty-to-care obligations were refined so that directors' diligence obligations were no longer just a vague and abstract concept but could be adopted.Specific judgment criteria to examine the performance of a legal obligation.Secondly,on the improvement of the system of directors' liability,the article analyzes the appropriateness and legal basis of the principle of liability fixation,and clearly defines the responsibility of the directors when they violate the obligation of diligence,and draws lessons from the principle of "constrained from lightness" in the Virginia company law.Restrict the scope of directors' compensation.At the same time,establish and improve the corresponding accountability system and director liability insurance system to form a complete civil liability system.The fourth chapter is about the judicial recommendations to improve the diligent duty system of the company directors in China.In this section,the article discusses the necessity and feasibility of using commercial judgment rules as a unified judicial review judgment rule in judicial practice in China.Taking the judging experience of the classic case of business judgment rules,such as the American "General Principles of Corporate Governance",Sperings,Aronson,and Ford cases,as a reference,combined with the judicial cases of our country's directors' diligence obligations,we concluded that the specific rules for the application of commercial judgment rules in China.In addition,considering that the business judgment rules are still in continuous development,the judging rules should be stipulated in the form of judicial interpretation and the specific invocation procedures in the judicial practice should be clearly defined in order to regulate the rules.At the same time as the behavior of directors,it also fully protects its business decision-making power.
Keywords/Search Tags:Directors, Duty of care, Liability system, Business Judgment Rule
PDF Full Text Request
Related items