Research On The Legal Liability Of Independent Directors For Failing To Perform Their Duty Of Diligence

The level of corporate governance is an important reference index of the core competitiveness of modern companies.The key to modern corporate governance is to give full play to the advantages of each participant and contribute wisdom to the development of the company.Listed companies are the ballast stone of the securities market.As an important participant in corporate governance,independent directors play a huge role in promoting the modernization of corporate governance,enhancing the competitiveness of the company,promoting the standardization of corporate management,improving the quality of corporate information disclosure,improving the level of risk control and safeguarding the rights and interests of the company and minority shareholders.As the gatekeeper of the interests of the company and minority shareholders,safeguarding their rights and interests is the starting point of their work.The primary function of independent directors is to supervise,restrict and prevent the controlling shareholders and actual controllers of a company from abusing control rights and harming the rights and interests of the company and minority shareholders.The identification of the duty of care of independent directors,the loss of investors and the role of independent directors in the misrepresentation of securities case of Kang mei Pharmaceutical Co.,Ltd.and Fujian Zhong he Co.,LTD.,and the reflection on the legal liability of independent directors.It provides a new research perspective for the determination of independent directors’ duty of care and causality of securities misrepresentation,and also provides a new opportunity for the revision of independent directors’ legal liability.In the case of misrepresentation,whether the independent directors are diligent and responsible in the process of performing their duties,and take reasonable and appropriate investigation means to fulfill their supervision obligations;What role independent directors take and how much role they play,and whether there is a causal relationship with investor losses;In securities false statements,what kind of legal liability independent directors should bear and how to determine the size of the liability need to be clarified at the legislative and judicial levels,which neither expands nor reasonably compacts the legal liability of independent directors.The identification of causality between trading and loss in securities false statements is the basis for investors to obtain compensation,and is also the premise for independent directors to take responsibility.Independent directors play an important role in improving the modernization of corporate governance of listed companies and enhancing the competitiveness of the company,which should be affirmed.At the same time,we should improve the problems existing in the legal liability of independent directors in securities false statements from the following aspects,promote them to perform their supervisory duty diligently,and reasonably identify their legal liability.In view of this,this paper adopts the idea of raising questions--analyzing problems--solving problems,and starts with two typical cases to discuss the causality and legal liability of independent directors’ duty of care,investor losses and independent directors’ signature behavior,and puts forward the following suggestions:First of all,the amendment of the Company Law introduces the rule of establishing business judgment,which always insists on judging whether independent directors are diligent and conscientious by combining other factors in the process of performing their duties.Guidance cases of independent directors bearing responsibility for breach of duty of care shall be issued to unify the scale of judgment.Secondly,the identification of transaction causality cannot only rely on the signature of independent directors in the company’s annual report and financial report.Investors carry out securities trading behavior,that is,the identification of independent directors’ signature fidelity obligation.The determination of loss causality does not apply to the presumption rule of fraud market theory in the securities market.Investors are allowed to put forward a more favorable calculation method of investment loss.If the exemption exemption excuse of independent directors is reasonable and proved by evidence,the court should adopt it.Finally,in the amendment to the Company Law,differentiated accountability mechanism of independent directors is established to accurately pursue and reasonably hold accountable,and a three-tier liability system is constructed.Independent directors do not know and have no evidence to prove that they are free from gross negligence when they disclose information documents of listed companies,but according to the fault presumption rule in tort law,independent directors bear limited liability when they have minor negligence.To bear proportional joint liability in the case of gross negligence;Bear joint liability under intentional circumstances.