A Empirical Study On The Criteria Of Director’s Duty Of Diligence

In 2005,the company law of China formally stipulated the duty of diligence of directors,but this provision only made a general statement of the duty of diligence,and did not specify the judgment standard and specific content of the duty of diligence.After searching and sorting out the cases of directors’ breach of duty of diligence from2006 to 2020,it is found that the judge applied the standards in the trial of the cases of directors’ breach of duty of diligence in confusion,which shows that the lack of the standards of judgment of duty of diligence brings great challenges to the judicial trial.Based on the previous theoretical research,this paper explores the judgment standard of diligence obligation by analyzing judicial cases.This paper is divided into four parts:The first part discusses the basic theory of directors’ duty of diligence.First of all,it expounds the meaning of the duty of diligence,and points out that the duty of diligence of directors refers to that directors should be diligent in managing the affairs of the company and try their best to seek business interests for the company;secondly,it expounds three kinds of judgment standards of the duty of diligence,The first is "subjective standard",that is,taking the actual ability of directors as the measurement standard;the second is "objective standard",that is,whether the director’s behavior has reached the level of attention of ordinary people in the same position in similar situations;the third is "subjective and objective combination standard",that is,the general notes of ordinary people in the same position in similar situations are generally required However,when directors have higher experience and skills,they have higher requirements;Finally,the theoretical basis and constitutive requirements of business judgment rules are elaborated.The second part discusses the current situation and existing problems of the legislation on the duty of diligence of directors in China.Through sorting out the legal provisions of the duty of diligence of directors,the following problems are found: first,the normative documents of different effectiveness levels have made rough provisions on the content of the duty of diligence of directors.Due to different effectiveness,different application subjects and scope,the whole normative documents on the content of the duty of diligence have not formed a unified system;second,there is a lack of judgment standards for the duty of diligence;third,there is a lack of judgmentstandards for the duty of diligence Corresponding exemption clause.The third part makes an empirical analysis on the judgment standard of diligence obligation.First,the case source and screening methods are explained;then the retrieved cases are analyzed,mainly in three aspects: first,what kind of standards are used in court trials;second,the specific acts of directors in violation of the duty of diligence;third,the cases are judged by the court using the rules of business judgment.Through the analysis of this chapter,it provides direction and reference for the reconstruction of the following part.The fourth part is to improve the judgment standard of directors’ duty of diligence.First of all,it points out that we should establish a judgment standard that is mainly objective,supplemented by subjective;second,we should specify the duty of diligence of directors,and stipulate the clauses to cover the bottom;finally,it discusses the necessity and the introduction path of introducing the rules of business judgment in China,and points out that we should establish the rules of business judgment in the form of judicial interpretation in line with the actual situation in China.