Construction Of The Objective Standard Of Fiduciary Duty Of Independent Directors Of Listed Companies In China

The content of fiduciary duty of independent directors remains to be discussed.Reviewing the operation effect of the independent director system since its inception,whether from the perspective of economics or the perspective of legal operation,the statistical data and other studies on the operation effect of the independent director system by various scholars show that the operation status of the independent director system cannot achieve the initial intention of introduction.Since the establishment of the independent director system in China,there have been frequent incidents in which independent directors have been punished for failing to perform or fully perform fiduciary duty.Statistical data show that the annual attendance rate and conference attendance rate of independent directors in China are low,and their exercise of voting rights is not optimistic.These cases and data are related to the fiduciary duty of independent directors.Fiduciary duty originated from the Anglo-American law countries and refers to the act for the best interests of others,including duty of loyalty and duty of diligence.China's company law also stipulates that the directors of a company have the duty of loyalty and diligence to the company.This paper holds that the quasi-agency and quasi-entrustment theory should be applied between directors and the company.On this basis,the content of the relationship between directors and the company can refer to the spirit and content related to fiduciary duty in the fiduciary duty theory.This paper compares the differences between fiduciary duty of independent directors and fiduciary duty of independent directors under general and special circumstances.In addition,the author also believes that independent directors havefiduciary duty under special circumstances,such as duty of loyalty,duty of diligence and obligation of information disclosure under anti-takeover circumstances.After sorting out the concept and content of fiduciary duty,the author deduced from the recent remarks of China securities regulatory commission that China securities regulatory commission believes that the duty of diligence of independent directors should be the same as that of internal directors,but the author believes that the duty of independent directors should not be treated the same as that of directors.In order to compare the similarities and differences between the two,the author discusses the connotation of the duty of loyalty and duty of diligence of internal directors.Based on the fiduciary duty of directors,the objective aspects of the duty of loyalty and duty of diligence that independent directors should perform are sorted out,and the differences between independent directors and internal directors are compared.Since the objective criteria for judging whether an independent director performs the duty of loyalty and diligence are not yet specific and clear,the author reviewed the articles of other scholars to summarize and summarize the viewpoints.The duty of loyalty is the most basic to the objective rules of conduct proposed by the directors,and such objective rules of conduct do not put forward higher requirements for skills,but can fulfill the obligations by virtue of kindness.By contrast,the content of this obligation of independent directors may vary,but the measurement standards are generally the same.Duty of loyalty focuses on the director's character,namely " what can't be done",while duty of diligence focuses more on the director's ability,namely "what should be done".Put forward higher requirements for skills,not only by virtue of a good heart can be done,need solid skills and other comprehensive quality.According to the author,the judgment criteria for judging whether an independent director has fulfilled fiduciary duty should follow the following procedures: If the independent directors lose their independence,there is no need for them to exist,and whether the independent directors have fulfilled their fiduciary duty also becomes a rootless tree without a source.Therefore,when it is found that independent directors are not independent,there is no need to discuss whether independent directors fulfill fiduciary duty.If independent directors lose their independence,their behaviors will be more or less biased.Judge whether to exercise faith obligations before a judge for independent directors,independent directors is not independent,when found shall be regarded as independent directors did not fulfill theduty faith,because the independent directors' companies to have independent directors do not have independence highly cover but be known,and independent directors itself on the relationship between the closely associated with their most clearly.Secondly,if they are independent,they can investigate whether the independent directors meet the objective performance of the duty of loyalty.If they fail to meet the objective aspect of the duty,they can directly determine the objective conditions for the failure to perform the fiduciary duty,and there is no need to investigate the duty of diligence for the time being.Thirdly,the objective aspects of diligence obligation are examined.Among them,voting position is very important,representing the final attitude of independent directors,which is the form of their inner thoughts expressed on the outside.Independent directors should be responsible for their voting behavior.Finally,combined with the relevant subjective factors and other judgment principles of comprehensive measurement.Above investigate whether the independent directors to exercise the duty of loyalty and diligence obligation,should from the objective aspect,including the general situation and the objective aspects of faith obligations under special situation,as for the subjective aspects of independent directors,and eliminate some responsibility,mechanism,such as introducing the business judgment principle is to estimate the objective aspects process after the correction.In other words,the objective aspect of fiduciary duty should be identified first,and then,based on the existing identification,the specific independent directors' performance of fiduciary duty should be comprehensively judged according to their subjective characteristics.Since the subjective aspect is abstract,and different behaviors are seen by different judges,whether the fiduciary duty of specific independent directors can be modified is different,which needs to be treated in specific circumstances in reality.In order to urge independent directors to fulfill fiduciary duty,the author briefly discusses several other supporting mechanisms,including establishing their reputation mechanism and perfecting their compensation mechanism,limiting their punishment amount,establishing their compensation protection system and other corresponding measures.Among them,establishing the reputation mechanism of independent directors is the primary task.