On The Judgment Criteria Of Directors' Duty Of Care

"Board of Directors Centralism" has become the mainstream trend of power change in modern companies.With the development of this trend,it is necessary to clarify the criteria of directors' duty of care in corporate governance.In order to enhance the prosecutability of directors' duty of care,the company directors' duty of care was first proposed in the revised Company Law in 2005.The law clearly stipulates the duty of care,which provides a relief mechanism for regulating directors' management of company.The duty of care urges directors to perform their duties in a manner suitable to the company's own situation,they should pay reasonable attention to the company's own situation in daily business decisions and adopt reasonable procedures to pay attention to maximize the interests of the company.When directors fail to fulfill their reasonable duty of care in the course of fulfilling their duties,the directors themselves shall bear the liability for compensation to the company.The introduction of duty of care in the revised Company Law in 2005 reflects the progress of China's Company Law,but the criteria for judging duty of care in the newly revised Company Law are not clear.Firstly,the rules and regulations of our country are too abstract,and there is no clear and specific provisions on the standards of conduct for the judgment of the duty of care,and can not provide specific guidance for the director's code of conduct.Secondly,the lack of provisions on the elements of responsibility and exemption in the legislative standards,and the uncertainty of the elements of responsibility make it is difficult for the judicial practice to specifically determine that the director has failed to perform or has not paid due attention,the lack of exemption clauses aggravates the legal risks of directors in the increasingly fierce market competition,and is not conducive to encouraging directors' innovative spirit.In real life,because there is no uniform legal provisions on the criteria for judging director's duty of care,different courts adopt different criteria for judging the application of this principle.Many countries have studied valuable experience and lessons in legislation and judicature in response to this problem.Among them,In the United States,the criteria for judging directors' duty of care are set out from two aspects: standards of conduct and standards of responsibility.After a long period of development,the criteria for judging directors' duty of care have gradually matured,which provides valuable experience for the improvement of the criteria for judging directors' duty of care in China.Judging standard is the core of director's responsibility.Our country should define the legal standard mode of director's duty of care through written law,We should define the behavior standard and constitutive elements of director's duty of care from subjective and objective perspective.On the basis of exploring American commercial judgment rules,the judicial review standard of directors' duty of care should be clarified.To improve the standard of our directors' duty of care conforms to the needs of theory and reality,It is ofgreat significance to perfect corporate governance system and promote the development of market economy.