简论公司董事勤勉义务
发布时间：2018-08-04 14:18
【摘要】：除引言与结语外,本文分三节:董事勤勉义务的概念和理论基础、具体内容和适用、相关意见建议。第一部分,董事勤勉义务是指董事如善良管理人那样尽自己最大的努力谨慎处理好公司事务,实现公司利益最大化。在学界其理论基础主要有下面三种。代理说是英美法系国家董事对外履行职责时法律地位的主流观点,但我国董事不享有代理权并非公司代理人。信托说是英美法系国家关于董事对内履行经营管理职责时法律地位的主流观点,但董事并不享有财产所有权且以积极管理风险为手段。委任说是日本、我国台湾地区的主流观点,同时与公司机关实在说、民法上的善良管理人等多个概念相一致,所以本文认为委任说为我国董事勤勉义务的理论基础。第二部分,董事勤勉义务的内容包括技能、勤奋、谨慎与监督义务四个方面。技能义务应采用客观标准,无论对于普通董事还是专家型董事;勤奋义务主要表现在董事获取决策所必须的数据、经常参加董事会和董事会上充分的讨论;谨慎义务是董事根据获取的公司数据,做出合理相信有利于公司最大利益的决策;监督义务包括董事监督高管义务和独立董事监督其他董事义务,董事监督高管通过公司内控制度来实现,独立董事监督其他董事通过聘请外部机构调查、依法发表独立意见与征集中小股东投票权等方式来实现。董事勤勉义务的适用前提是未违反忠实义务,判断依据主要是董事决策行为而非决策结果,主要规制对象是董事玩忽职守。第三部分,相关意见建议包括完善公司法和董事学会相关规定、人民法院谨慎适用经营判断规则和公司章程明确勤勉义务责任限额。董事学会应当制定包括董事道德操守、资格认定、行为准则和处罚细则等内容的自律性文件,充分发挥董事学会的自律功能。人民法院谨慎适用经营判断规则,信赖董事的商业决策能力,注重对决策的程序性审查而非实质性审查。公司章程明确勤勉义务责任限额,既充分考虑了董事经济承担能力又能增强董事的责任心,对于公司承担的剩余损失可以通过董事责任保险进行分散。
[Abstract]:In addition to the introduction and conclusion, this article is divided into three sections: the concept and theoretical basis of the duty of diligence of directors, the specific content and application, and relevant suggestions. In the first part, the director's duty of diligence means that the director should try his best to handle the affairs of the company carefully and realize the maximization of the company's interests. There are three main theoretical bases in academic circles. Agency theory is the mainstream view of the legal status of directors in Anglo-American law countries when they perform their duties to the outside world, but the directors in our country do not enjoy the right of agency, which is not the agent of a company. Trust theory is the mainstream view in Anglo-American law countries on the legal status of directors when they perform their duties of management and management, but the directors do not enjoy property ownership and take active management of risk as a means. Appointment theory is the mainstream point of view in Japan and Taiwan area, and is consistent with many concepts, such as the theory of good manager in civil law and the theory of good manager in civil law. Therefore, the theory of appointment is considered as the theoretical basis of diligence and duty of directors in our country. The second part, the duty of diligence includes four aspects: skill, diligence, care and supervision. The skill obligation should adopt the objective criterion, whether for the ordinary director or the expert director, the diligence duty mainly manifests in the director obtains the necessary data to make the decision, often participates in the board of directors and the board of directors full discussion; The duty of care refers to the directors making decisions that are reasonably believed to be beneficial to the best interests of the company according to the company data obtained; the duties of supervision include the obligations of directors to supervise senior executives and the obligations of independent directors to supervise other directors. Directors supervise executives through the system of internal control of the company, independent directors supervise other directors by employing outside institutions to investigate, express independent opinions according to law and collect the voting rights of minority shareholders. The applicable premise of the duty of diligence of directors is that they have not violated the duty of loyalty, and the judgment is mainly based on the directors' decision-making behavior rather than the decision results, and the main object of regulation is the directors' neglect of duty. In the third part, the relevant opinions and suggestions include perfecting the company law and the relevant regulations of the Institute of Directors, the people's Court carefully applies the rules of operation judgment and the articles of association of the company make clear the limitation of duty of diligence. The Institute of Directors shall formulate self-regulatory documents including the contents of directors' ethics, qualification, code of conduct and detailed rules of punishment, so as to give full play to the self-discipline function of the Institute of Directors. The people's court carefully applies the rules of operation judgment, relies on the director's ability of commercial decision, and pays attention to the procedural review rather than the substantive review of the decision. The articles of association clearly limit the liability of diligence, which not only fully considers the director's economic commitment ability but also enhances the director's responsibility. The residual loss of the company can be dispersed by the director's liability insurance.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.91
本文编号：2164148
[Abstract]:In addition to the introduction and conclusion, this article is divided into three sections: the concept and theoretical basis of the duty of diligence of directors, the specific content and application, and relevant suggestions. In the first part, the director's duty of diligence means that the director should try his best to handle the affairs of the company carefully and realize the maximization of the company's interests. There are three main theoretical bases in academic circles. Agency theory is the mainstream view of the legal status of directors in Anglo-American law countries when they perform their duties to the outside world, but the directors in our country do not enjoy the right of agency, which is not the agent of a company. Trust theory is the mainstream view in Anglo-American law countries on the legal status of directors when they perform their duties of management and management, but the directors do not enjoy property ownership and take active management of risk as a means. Appointment theory is the mainstream point of view in Japan and Taiwan area, and is consistent with many concepts, such as the theory of good manager in civil law and the theory of good manager in civil law. Therefore, the theory of appointment is considered as the theoretical basis of diligence and duty of directors in our country. The second part, the duty of diligence includes four aspects: skill, diligence, care and supervision. The skill obligation should adopt the objective criterion, whether for the ordinary director or the expert director, the diligence duty mainly manifests in the director obtains the necessary data to make the decision, often participates in the board of directors and the board of directors full discussion; The duty of care refers to the directors making decisions that are reasonably believed to be beneficial to the best interests of the company according to the company data obtained; the duties of supervision include the obligations of directors to supervise senior executives and the obligations of independent directors to supervise other directors. Directors supervise executives through the system of internal control of the company, independent directors supervise other directors by employing outside institutions to investigate, express independent opinions according to law and collect the voting rights of minority shareholders. The applicable premise of the duty of diligence of directors is that they have not violated the duty of loyalty, and the judgment is mainly based on the directors' decision-making behavior rather than the decision results, and the main object of regulation is the directors' neglect of duty. In the third part, the relevant opinions and suggestions include perfecting the company law and the relevant regulations of the Institute of Directors, the people's Court carefully applies the rules of operation judgment and the articles of association of the company make clear the limitation of duty of diligence. The Institute of Directors shall formulate self-regulatory documents including the contents of directors' ethics, qualification, code of conduct and detailed rules of punishment, so as to give full play to the self-discipline function of the Institute of Directors. The people's court carefully applies the rules of operation judgment, relies on the director's ability of commercial decision, and pays attention to the procedural review rather than the substantive review of the decision. The articles of association clearly limit the liability of diligence, which not only fully considers the director's economic commitment ability but also enhances the director's responsibility. The residual loss of the company can be dispersed by the director's liability insurance.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.291.91
【参考文献】
相关期刊论文 前6条
1 牟小舟;;董事勤勉义务判断标准的比较研究[J];研究生法学;2013年01期
2 傅穹;曹理;;独立董事勤勉义务边界与免责路径[J];社会科学;2011年12期
3 常亮;孙莹;;勤勉义务规则的司法适用[J];人民司法;2012年02期
4 张民安;董事的法律地位研究[J];现代法学;1998年02期
5 任自力;;公司董事的勤勉义务标准研究[J];中国法学;2008年06期
6 胡滨,曹顺明;论公司法上的经营判断规则[J];中国社会科学院研究生院学报;2005年01期
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