论董事的注意义务

发布时间：2018-03-18 02:33

本文选题：董事的注意义务　切入点：判断标准　出处：《辽宁大学》2011年硕士论文　论文类型：学位论文

【摘要】：随着经济不断发展,商事行为的复杂性和多样性也日趋明显,需要有更多的专业人事参与到公司的日常经营活动中来。如此一来董事会及董事的权利就不断扩张,公司运作模式随之由“股东大会中心主义”向“董事会中心主义”不断转化。为了使董事对公司尽职尽责,不滥用法律、法规及公司章程赋予其的权利,现代各国的立法均强化了对董事义务及责任的规制。尤其是英美法系国家,其对公司领域的研究已逾百年,且在多年的司法实践中相关董事义务之法律制度已相对完善,其中对董事注意义务内容及董事是否履行相关义务的判断标准有着明确的规定或详尽的判例分析。很多大陆法系国家虽然规定较为抽象,但均在其成文法中对董事的注意义务进行笼统的规定。相对而言,我国的公司法对于整个董事义务的规定就较为单薄,首次在公司法中提及董事的勤勉义务,采用“董事的勤勉义务”是否符合立法本意在所不议,随后也并未解释何谓勤勉义务,如何界定董事是否合理并适当的履行了该项义务,违反此项义务董事如何承担相应责任,其中最重要的就是缺乏一个有效的标准来衡量董事是否尽到了其应有的注意义务。目前在我国的司法实践中,判断董事是否履行了其忠实义务是比较好认定的,而判断董事是否履行了其注意义务因缺少相应规定在司法实务中难以操作,这显然不利于保护公司、股东以及其他利益群体的合法权益。我国公司的很多损失并不是由于董事违反了法律、法规或是公司章程造成的,而是由于董事在经营管理活动中的疏忽造成的,因此在立法中明确规范董事的注意义务是非常有必要的。本文主要采用语义分析及比较分析的方法,针对我国现行法律规定董事注意义务的不足之处,介绍两大法系主要国家关于董事注意义务制度的相关规定,然后结合我国公司经营管理的现状,提出相关的完善方案。此笔者认为在研究董事注意义务制度时,首先,有必要明确董事注意义务的内涵以便将其与其他法律制度相区别。其次,应明确规定董事注意义务的判断标准,设置此项制度就是为了使董事更好的履行其相关的职责,只有判断标准明晰才能使整项制度从法律规定走向司法实践,也只有这样才能实现该项制度的目的。最后,美国之经营判断原则具备在我国适用的必要性及可行性,可将董事注意义务的判断标准与责任标准相区分,此种设计既有利于董事承担责任的范围,也有利于董事在市场风险不可规避的情况下积极发挥其专业技能实现公司的最大利益,即使最后未能为公司取得相关利益或受有损失时亦因其行为正当性而免除法律追诉。
[Abstract]:As the economy continues to develop, the complexity and diversity of business practices become increasingly apparent, and more professional personnel are needed to participate in the day-to-day operations of the company. The mode of operation of the company has been transformed from "general meeting centralism" to "board centralism". In order to make directors perform their duties towards the company without abusing the rights conferred on them by laws, regulations and articles of association, The legislation of modern countries has strengthened the regulation of directors' duties and responsibilities, especially in Anglo-American legal system countries, whose research on corporate field has been more than 100 years, and the legal system of directors' obligations has been relatively perfect in judicial practice for many years. Among them, there are clear provisions on the content of directors' duty of care and the judgment criteria of directors' performance of relevant obligations, or detailed analysis of jurisprudence. Although many civil law countries have relatively abstract provisions, However, in their statutory law, the directors of the duty of care are general provisions. Comparatively speaking, the regulation of the whole director's duty in the company law of our country is relatively weak, the duty of diligence of the director is mentioned for the first time in the company law, and whether the "diligent duty of the director" conforms to the original intention of the legislation is not discussed for the first time. Then there is no explanation as to what the duty of diligence is, how to define whether the director has reasonably and properly fulfilled the obligation, and how the director of the breach of this obligation shall bear the corresponding responsibility, The most important thing is the lack of an effective standard to measure whether the directors have fulfilled their due duty of care. At present, in the judicial practice of our country, it is relatively easy to determine whether the directors have fulfilled their duty of loyalty. Judging whether the directors have fulfilled their duty of care is difficult to operate in judicial practice due to the lack of corresponding regulations, which is obviously not conducive to the protection of the company. The legitimate rights and interests of shareholders and other interest groups. Many of the losses of Chinese companies are not caused by directors' violation of laws, regulations or articles of association, but by the directors' negligence in their management activities. Therefore, it is very necessary to regulate the duty of care of directors in legislation. This paper mainly adopts the method of semantic analysis and comparative analysis, aiming at the deficiency of the director's duty of care in the current law of our country, introduces the relevant provisions of the system of directors' duty of care in the main countries of the two legal systems. Then according to the current situation of company management in our country, the author puts forward the relevant consummation plan. The author thinks that when studying the system of directors' duty of care, first of all, It is necessary to clarify the connotation of directors' duty of care in order to distinguish it from other legal systems. Secondly, it is necessary to clearly define the judgment standard of directors' duty of care, which is designed to enable directors to perform their relevant duties better. Only when the standard of judgment is clear can the whole system be moved from law to judicial practice, and only in this way can the purpose of the system be realized. Finally, the principle of business judgment in the United States has the necessity and feasibility to apply in our country. The judgment standard of directors' duty of care may be distinguished from the standard of liability, which is beneficial to the scope of the directors' responsibility, It is also beneficial for directors to actively exert their professional skills to realize the best interests of the company even if they fail to obtain the relevant benefits or suffer losses in the end but also exempt from legal prosecution because of the legitimacy of their actions.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91

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