Research On Legal Regulation Of Fiduciary Duty Of Directors

The fiduciary duty of the directors of a company belongs to the corporate governance part of the company law.It is the behavior restriction to the managers of the company under the condition of full respect for commercial autonomy,and plays an important role in the corporate governance.The core of corporate governance is the board of directors.Whether the board of directors can play a key role in corporate governance directly determines the quality or even the success or failure of corporate governance.The core of board governance is the reasonable allocation of power,and the corresponding power and obligation,the violation of obligation will result in responsibility.The regulation of obligation by law,on the one hand,reflects the consistency of rights and obligations,on the other hand,promotes the directors to better exercise their power.This paper is divided into four parts:The first part aims to clarify the theoretical context of directors' fiduciary duty and define its connotation.First,from the perspective of the fiduciary relationship,trust relationship and principal-agent relationship,this paper expounds the legal basis of the fiduciary obligation of directors,and then makes a legal analysis of the fiduciary obligation of directors from the perspective of rights,obligations and responsibilities.Finally,from the theory of commercial law,the theory of company contract and the theory of company governance,the paper sets up the principle idea of the regulation of director's fiduciary duty,and determines that the goal of company governance is the foothold of the regulation of director's fiduciary duty.In the second part,the influencing factors of the legal regulation of directors' fiduciary duty are considered.One of the most important problems in the establishment of fiduciary duty of directors in the company law is the lack of consideration factors in the regulatory process.In this chapter,the differences of objectives,value selection and duty performance standards in the regulatory process are fully considered from three aspects: the type of company,the personal identity of directors and the ownership structure of the company.The third part takes the duty of care in the fiduciary duty as the research object.First of all,we investigate the current judicial practice of the duty of care review in China,and find and put forward the problems in the application of this clause.Secondly,it makes a reasonable evaluation on whether the director's behavior violates the duty ofcare,and judges its effectiveness,so as to solve the problem of how to determine the examination standard of the duty of care and improve the level of corporate governance.In dealing with this problem,we often resort to the rules of business judgment.Then,the content,characteristics,standards and significance of the rules of business judgment are described.The purpose of establishing the duty of care regulation is to urge directors to perform their duties in good faith.Finally,the paper puts forward some suggestions on the regulation of duty of care,such as strengthening the subjective requirements,defining the review standards,introducing the business judgment rules to realize the comprehensive substantive review,and adding the integrity rules to restrict the moral and professional obligations of directors.The fourth part takes the duty of faithfulness as the research object.In this part,we choose two kinds of terms to examine the directors' duty of loyalty,one is the self dealing clause,the other is the company opportunity clause.Through the fair standard,we can reasonably evaluate whether the directors' behavior violates the duty of loyalty,and judge its effectiveness.The purpose of establishing the regulation of the duty of loyalty is to resolve the conflict of interest.The elaboration of the conflict of interest is mainly to clarify the scope of the subject of the conflict of interest,including the conflict among the director's interest,the shareholder's interest and the company's interest.Finally,the author proposes to strengthen the procedural fairness standard by strengthening the pre procedural requirements of disclosure,to strengthen the regulation suggestions of loyalty obligations by highlighting the differences of cases,and to strengthen the substantive fairness standard,as well as the relevant suggestions of shareholders' judicial relief through derivative litigation.