Analysis On The Civil Liability Of Independent Directors For False Statements Of Listed Companies

Since the establishment of the independent director system,gratifying achievements have been made in the reform and development of my country’s securities market,and earth-shaking changes have also taken place.The independent director system of listed companies urgently needs to adapt to the developing and changing securities market.The role,power and responsibilities of independent directors,remuneration structure and reward and punishment mechanism,performance standards and legal responsibilities,etc.should be reformed and improved,which is the main reason for the market to question and debate the independent director system.For independent directors,should they bear absolute legal responsibility for false statements as the person directly responsible,and should bear civil compensation disproportionate to their allowances? It seems a bit of an afterthought to ask this question now,because the judiciary has already ruled this way.However,how to correctly understand this problem in theory is related to the healthy development of the independent director system.In contrast to the Kang Mei Pharmaceutical case,the Guangzhou Intermediate People’s Court’s judgment stated: "If the aforementioned defendants,as directors,supervisors or senior managers,perform their duties of diligence,even if they are only in charge of part of the business,it is impossible for them not to find clues at all." It is undoubtedly suitable for the internal directors,supervisors and senior management of Kang Mei Pharmaceutical,but it does not fully consider the differences in the performance of independent directors and company insiders and the particularity of the profession of independent directors.There is no objective reality that independent directors have subjective intentions in financial fraud.Further,as long as the independent directors have a reasonable trust based on the relevant information of listed companies in their possession,and have carefully reviewed their own professional experience and work ability,or have made reasonable trust in accordance with the opinions of professionals of professional intermediaries,even if the final The results show that the independent director’s judgment is wrong,how can it be judged that he has not fulfilled his duty of prudence and diligence?The main body of this article contains four chapters:The first chapter of this paper mainly analyzes the nature of the civil liability assumed by the independent directors of listed companies for false statements and the constituent elements of the civil liability.Only by first clarifying the nature of the civil liability,we can analyze its constituent elements one by one,and through the Kang Mei Pharmaceutical case,which has caused great controversy in the industry,extract the court’s judgment on the liability of independent directors,and lead the independent directors to bear the civil compensation for the listed company’s misrepresentation.The real dilemma of responsibility.Next,the securities market is an ever-changing market.With the continuous deepening of financial innovation,misrepresentation may become more and more concealed,and civil liability regulations may also lag.Therefore,the author analyzes the current securities market.The impact of the registration system on the civil liability of independent directors lays the groundwork for the analysis and problem solving that follows.The second chapter of this paper first analyzes the role of independent directors according to the questions raised in the first part,and believes that the main reason for introducing the independent director system in my country in 2001 is to improve the internal governance structure of listed companies,requiring independent directors to play a role in supervising listed companies and Its controlling shareholder,actual controller,and the role of protecting the interests of small and medium investors.However,in practice,some private enterprises and innovative enterprises have mainly "consultant" experts in their demand and positioning of independent directors,and most listed companies have independent directors with industry experts,which shows their interest in this "consultation".Structural expression of needs.Therefore,if there is a dual value pursuit in the independent director system,it will bring difficulties to the specific system design,make the terms of appointment,statutory duties and civil responsibilities of independent directors more ambiguous,and cannot provide clarity for judicial practice.The legal guidelines may lead to different judgments in the same case.Therefore,the reform and improvement of the independent director system of listed companies should always adhere to the role of independent directors as "supervisors".Then,it introduces the core judgment standard for independent directors to bear the civil liability for securities misrepresentation,that is,the duty of diligence,and classifies the duty of diligence in detail,including the duty of procedural diligence and the duty of substantive diligence.Procedural diligence mainly refers to the obligation of independent directors to attend relevant meetings of the company’s board of directors and attend relevant shareholders’ meetings and other meetings that should be attended,and to express independent opinions or suggestions on various matters of the company in the meeting and vote.Substantive duty of diligence is the core criterion for determining whether an independent director of a listed company performs the duty of diligence,including duty to know,duty to supervise,duty to advise,etc.In addition,it introduces the judging standard of American independent directors’ diligence duty and Germany’s independent directors’ diligence duty judging standard and compares them with my country,and at the end of this part,we should pay attention to the daily performance of independent directors.Based on the role positioning of the independent director system and the judgment standard of the duty of diligence,The third chapter of this paper believes that the focus of the civil liability of independent directors should be serious violations of the duty of diligence and other gross negligent acts.The day-to-day performance of independent directors shall be exempted from civil liability for loyal and diligent independent directors.He also maintains that,in securities misrepresentation tort liability disputes,the standards for determining fault of independent directors should also be different according to different sources of information and whether it is professional information.Due to the difference in work experience and professional background of directors,the diligence obligations they are required to perform in the same listed company should also be differentiated.The fourth chapter proposes the creation path of my country’s listed companies’ misrepresentation of independent directors’ accountability mechanism,that is,firstly,starting from the interior of civil liability,clarifying the judgment standard of diligence,and secondly,based on the role of my country’s independent directors and independent directors in practice.The performance of duties and remuneration of directors shall be distinguished between independent directors and internal executive directors,and between independent directors with different professional backgrounds,and refined judgments shall be made on the civil liability of independent directors for false statements.At the same time,we also need to improve the corresponding supporting systems,including the improvement of professional insurance for independent directors,the establishment of a self-discipline organization for independent directors,and the reference to the credit file system in the market to escort the development of my country’s independent director system.