The Research On The Judgement Standards Of Directors’ Duty Of Diligence

In today’s rapid development of market economy in our country,the establishment of companies like bamboo shoots after a spring rain.The separation of ownership and management makes the company’s production,operation and profit maximization rely too much on the directors,whose position may be said to be very important.The management behavior of directors may not be perfect,which may cause huge losses to the company.Therefore,the number of cases involving the duty of diligence of directors increases year by year.In addition,the current legislation on the duty of care of directors is very vague,generally inclined to principle.The existing legal provisions can no longer meet the needs of judicial practice,which has also caused a wide range of discussion in the academic community.What are the specific standards for duty of care? Who bears the burden of proof? And what is the scope of liability for breach of duty of care? And so on these issues are in urgent need of our country through legislation to explain and improve.Establishing proper judgment standard of directors’ duty of care and seeking the best balance point between the company and the directors can not only limit the abuse of directors’ rights,but also stimulate the directors to actively innovate and perform their duties diligently.This paper starts with the theoretical knowledge of duty of care by combining theoretical research with practical research,discusses the different relations between companies and directors and the different theories of judgment standards,and distinguishes them from the duty of loyalty,which lay a solid theoretical foundation for the follow-up improvement of the standard for judging directors’ duty of care.Then,by summarizing judicial cases,existing laws,regulations and various normative documents,the deficiencies and problems in legislation and practice are highlighted through quantitative analysis and summary.For example,the distribution of case time and region reflects the unbalanced development of the standard of directors’ duty of care;From the different result of the same type of case,it is found that there is a lack of clear judgment standard in the legislation,which leads to the confusion of the application of judicial practice and the different burden of responsibility,and so on.Judicial uncertainty will lead to unfair treatment of directors and companies.Therefore,it is necessary to study the judgment standard of directors’ duty of care from a comprehensive and multi-angle perspective in order to provide certain guidance for the improvement of legislation and justice.In addition,by comparing the evolution process of the standards of duty of care of directors in Britain,the United States,Japan and Germany,which are representative countries of the two major legal systems outside the region,it is found that the relevant standards outside the region are not fixed.In combination with the specific national conditions and practical needs of our country,the successful experience will be refined,according to local conditions for reference,to determine the criterion of the combination of subjective and objective which the objective is the primary,the subjective is secondary.At the same time,relevant supporting systems should be improved,commercial judgment rules should be introduced in an exploratory way through judicial interpretation,and the standard system for judging directors’ duty of care with Chinese characteristics should be finally formed.