Research On The Legal Issues Of Diligence Obligations Of Independent Directors In My Countr

China’s independent director system has been introduced in China for more than 20 years under the guidance of optimizing corporate governance and protecting the rights and interests of small and medium shareholders,and the current situation that independent directors are repeatedly subject to administrative penalties for violating their duties of diligence is particularly striking.The release of the trial results of the Kangmei Pharmaceutical Case even triggered the resignation of a large number of independent directors.There are many factors behind the phenomenon.There are not only the pros and cons of the independent directors themselves,but also other objective factors.One of the important factors is the current independence of our country.There may be many problems with the diligence obligations of directors.For example,due to the lack of detailed regulations on the diligence obligations of independent directors in the current "Company Law","Securities Law" and other laws and relevant normative documents,the judgment standard in practice is too strict.This makes it difficult for independent directors to perform their duties,how to perform their duties,how to judge whether to perform their duties diligently,and how to achieve exemption from liability,etc.,which makes it difficult for the independent director system to achieve the purpose of introducing it,and it is difficult for independent directors to play the role of optimizing corporate governance.,and due to such reasons,it will also lead to many practical problems such as "Vase Director" and "Nominal".This article adopts the structure of first asking questions,then analyzing and suggesting countermeasures one by one.Therefore,the first chapter of this article starts from the two levels of legislation and practice,combing the relevant provisions of the current legal system on independent directors’ diligence obligations,analyzing its concepts and content,and combining The analysis of the administrative punishment case of the China Securities Regulatory Commission and the judicial case of the court pointed out the three major problems of the current diligence obligations of independent directors in my country,namely,the unstable foundation of performance,the unclear judgment standard and the lack of exemption paths.After identifying the above three problems,this article analyzes the above problems and suggests countermeasures in the next three chapters.In the second chapter,firstly,the content of the duty of diligence of independent directors in China and the United States,and the content of duty of diligence of independent directors and directors in my country are analyzed through comparative law.Judgments are made based on functions and professional competence;secondly,combined with the empirical analysis of the results of administrative punishments conducted by the China Securities Regulatory Commission,it is pointed out that the reason for the instability of the foundation of independent directors’ diligent duty performance is that independent directors are caused by imperfect appointment conditions and selection procedures.Independence is difficult to guarantee,the power of supervision conflicts with the powers of the board of supervisors,the inability to know the right to know makes it difficult to realize the supervision function,and the lack of professional competence and lack of time and energy lead to insufficient professional competence adaptation.Finally,the reasons will be strengthened to perform duties.The basic suggestion is to establish a professional national independent directors association to raise the threshold,guarantee the independence and guarantee the quality of the appointment,reconstruct the streamlined internal supervision mechanism of the company to clarify the supervision function positioning,strengthen the protection of the right to know,and adopt single-core leading supervision Mechanism,and set up a new independent director selection procedure.In the third chapter,firstly,it analyzes the judgment standards for the diligent performance of independent directors in Germany,Japan,the United States and the United Kingdom through the comparative method.In addition to comparing the four different judgment standards,it analyzes the current judgment standards in my country,and points out the existence of the provisions of my country’s "Company Law".Omissions,result-oriented liability rules are not reasonable enough,and strict standards of diligence are not suitable for my country’s national conditions.An empirical analysis of judicial judgments shows that my country’s current judgment standards need to be reconstructed;secondly,in the reconstruction analysis,the "good managers" The standards are confirmed,the standards are specified,and the company’s articles of incorporation are supplemented by the analysis of the judgment standards to construct the standards for “good managers” that are suitable for my country’s current status quo;finally improve the judgment standards of independent directors’ diligence obligations in my country,and propose proactive and practical behavior standards.In terms of the duty of care standard,the "good manager" standard and the duty of care standard of third-party information trust,and the formation of a chain of judgments for diligent performance of duties,are proposed in three aspects.In Chapter 4,firstly,by comparing and analyzing the three popular mechanisms of independent director exemption mechanisms in various countries: liability insurance mechanism,liability limitation mechanism and business judgment mechanism,it is concluded that the advantages of business judgment mechanism are more prominent and more suitable.Introduce our country’s judgments,followed by analysis of the mechanism’s suitability to our country’s corporate governance model,the acceptance of judicial practices,and the possibility of repetition and conflicts in the system.The four elements that conform to the company’s interests and development requirements,are based on appropriate information,and that there is no conflict of obligations are the constituent elements of the mechanism.Judging the path of transplantation of the mechanism in my country from the guiding case approach,legislative approach,and judicial interpretation approach,and finally proposed to pass the " The "Company Law"establishes a business judgment mechanism,the Supreme People’s Court issues judicial interpretations,and the Securities Regulatory Commission proposes to improve relevant documents to achieve empowerment and build a three-in-one exemption path.