Research On The Tort Liability System Of Independent Directors

At the end of 2021,a judgment in the Kangmei Pharmaceutical case caused strong concern in the society,which pushed the professional group of independent directors into the spotlight,and huge compensation led to the resignation tide of independent directors.In order to maintain the stability of the securities market,improve the system of independent directors,and realize the functions of independent directors,China revised and issued a series of legal provisions in 2022,including the Securities Law,the Rules of Independent Directors of Listed Companies,and the Several Provisions of the Supreme People’s Court on the Trial of Civil Compensation Cases of Misrepresentation Infringement in the Securities Market,to define the principle of liability fixation of independent directors The exemption provisions have been further improved and clarified,which has improved the independent director system in China to a certain extent.However,at present,there are still practical dilemmas in the independent director’s tort liability system.First,there are conflicts between the obligation homogeneity and function differentiation between the independent director and the internal director.The independent director and the internal director have different functional responsibilities,but bear the same legal obligations,which is too harsh for the independent director;Second,the form of independent director’s tort liability is unitary,and the independent director’s tort liability system with joint and several liability cannot meet the needs of judicial practice of independent director’s tort liability in China;Third,the independent director’s tort liability is too heavy,and the excessively strict tort liability increases the risk of the independent director’s performance of duties and hinders the realization of the independent director’s own functions.The main reasons are as follows: First,there are defects in the theoretical basis of the obligation setting of independent directors.In the legislation,independent directors and internal directors are regarded as the same legal status to set legal obligations,and the infringement of the two is confused,without considering the differences in many aspects between the two;Second,the independent director’s tort liability system has limitations in applying traditional tort liability theory.The single application of joint and several liability is too harsh,and the tort theory applicable to independent directors needs to be amended;Third,the strict tort liability of independent directors leads to the imbalance of rights,responsibilities and interests,and the available benefits of independent directors do not match the liability risk.For the revision of the application of the tort liability theory of independent directors,it is necessary to distinguish between the circumstances and exceptions of the application of joint tort and joint liability.There is no problem for the joint liability of independent directors with malicious participation and knowledge.For other independent directors with fault,it is necessary to enrich the types of liability forms and introduce the limited joint liability with the principle of liability redistribution,which is conducive to the sharing of the liability of independent directors and the protection of investors;The supplementary application of proportional liability can limit the liability of independent directors,but it is still too strict to apply to all situations and has limitations;In the separate tort,the liability share shall be determined by combining the fault degree of each actor and other factors;The application of limit liability can limit the liability of independent directors,reduce the professional risk of independent directors,and play its preset function.Refer to the diversified relief mode in the applicable mass tort theory and the diversified liability sharing mechanism in the majority tort theory.At the same time,we should also improve the constituent elements of the infringement of independent directors,distinguish and set the obligations of independent directors and internal directors,clarify the boundaries of the obligations of diligence and faithfulness,improve the obligation of diligence and responsibility of independent directors,establish the principle of fault presumption,clarify the degree of subjective fault,distinguish between direct and indirect damage,and distinguish the impact of transaction causation and loss causation on the size of liability,Distinguish and evaluate the infringement of independent directors and internal directors.The infringement liability of independent directors is independent and restrictive.In the case of securities misrepresentation and other violations,the infringement of independent directors and the infringement of internal directors should be evaluated separately,and the independent directors should be subject to separate liability in terms of liability,and this liability belongs to restrictive liability.In addition,we should improve the limitation and exemption system of independent directors’ tort liability,learn from the legislative experience of the United States,Japan and other countries,add provisions limiting the independent directors’ tort liability in the legal provisions and the articles of association,reduce the liability by means of exemption of shareholders’ meetings and directors’ meetings,exemption of the articles of association,and exemption of liability limitation contracts,reduce the employment risk of independent directors,and give play to the independent supervision function,To further improve the independent director system in China.