董事责任保险法律问题研究
发布时间：2018-10-22 11:25
【摘要】：董事责任保险起源于20世纪30年代的美国且在英美法系国家逐渐发展繁荣起来。董事责任保险的主要功能是保护董事和高级管理人员的利益,特别在现代公司所有权与经营权相分离的背景之下,公司的治理结构逐步由原先的"股东会中心主义"向现在的"董事会中心主义"转变。需要注意的是,董事高管在公司经营发展中的权利逐渐扩大的同时也应该承担与之相适应的义务和责任。由此董事高管履行职务的风险也越来越大,而过高的风险又限制了其履行职务的积极性。因此需要董事责任保险转移董事高管在经营管理公司时所面临的风险。正是基于董事责任保险的这一制度价值,我国于21世纪初引进了董事责任保险制度。然而,董事责任保险作为一种从国外移植到我国的职业责任保险,虽然在保险市场上发展了十余年的时间,但在大陆的上市公司中投保率依然很低。为何在美国等发达国家被证实其价值的法律制度,在我国大陆上市公司中不受欢迎呢?原因主要有两方面:一方面,与董事责任保险制度发展密切相关的法律制度方面存在障碍。首先,直接规定董事责任保险的法律依据不足,仅有两个证监会发布的规范性文件;其次,我国董事民事赔偿责任制度不健全,相关规定过于简略,缺乏可操作性;第三,股东代表诉讼制度不健全,在追究违反勤勉义务的董事民事赔偿责任时,股东难以举证证明董事违反了勤勉义务,遑论让董事承担相应的责任;另一方面,董事责任保险合同自身也存在一些问题,如具体保险条款设置上存在照搬国外条款而不适应国情等问题。上述法律问题无论是出于制度完善的内在需要还是出于发展董事责任保险的考虑,都亟需改善。因此首先要在《公司法》中明确规定公司有权为其董事及高级管理人员购买董事责任保险,并健全与董事责任保险相关的董事民事赔偿责任制度和股东代表诉讼制度,与此同时应对现有董事责任保险合同的不合理之处进行修正。本文结构分为四部分,正文第一部分对董事责任保险进行了概述,介绍了董事责任保险的一些基础概念,系统地对董事责任保险制度进行介绍,为后文的法律问题论述作了铺垫;第二部分在对我国董事责任保险发展现状描述的基础上,从我国的法律制度和董事责任保险合同存在的法律问题这两个角度,分析了我国发展董事责任保险制度存在的法律问题;第三部分以美国的董事责任保险制度研究为基础,分析美国的董事责任保险制度发展历程以及具体制度设计,从而得出对我国董事责任保险制度发展的启示;第四部分为在借鉴美国董事责任保险经验的基础上针对第二部分中涉及的法律问题而提出的完善我国董事责任保险制度的建议。以期建立符合我国国情的董事责任保险制度。
[Abstract]:Director liability insurance originated in America in 1930's and developed and flourished in Anglo-American law system countries. The main function of directors' liability insurance is to protect the interests of directors and senior managers, especially in the context of the separation of ownership and management rights of modern companies. The governance structure of the company has gradually changed from the original "shareholders' meeting centralism" to the "board of directors centralism". It is important to note that while the rights of directors expand gradually, they should also bear the corresponding obligations and responsibilities. As a result, the risk of directors performing their duties is increasing, and the excessive risk limits their motivation to perform their duties. Therefore, the director's liability insurance is needed to transfer the risk faced by the director's senior executives in the management of the company. It is based on the system value of director liability insurance that our country introduced director liability insurance system at the beginning of 21 ~ (st) century. However, as a kind of professional liability insurance transplanted from foreign countries to our country, directors' liability insurance has been developed in the insurance market for more than ten years, but the insurance rate is still very low in listed companies in mainland China. Why is the legal system which has been proved valuable in the United States and other developed countries not popular among the listed companies in mainland China? There are two main reasons: on the one hand, there are obstacles in the legal system which is closely related to the development of director liability insurance system. First, the legal basis for direct regulation of directors liability insurance is insufficient, only two normative documents issued by CSRC; secondly, the civil liability system of directors in China is not perfect, the relevant provisions are too simple and lack of operability; third, The shareholder representative litigation system is not perfect. When investigating the directors' civil liability for breach of the duty of diligence, it is difficult for shareholders to prove that the directors have violated their diligence obligations, let alone let the directors bear the corresponding responsibilities; on the other hand, There are also some problems in the directors' liability insurance contract, such as copying the foreign clauses and not adapting to the national conditions. The above legal problems need to be improved either because of the internal need of the perfection of the system or the consideration of developing the director's liability insurance. Therefore, first of all, it should be clearly stipulated in the Company Law that the company has the right to purchase directors' liability insurance for its directors and senior managers, and to perfect the director's civil liability system and shareholder representative action system related to directors' liability insurance. At the same time, the existing director's liability insurance contract should be amended. This paper is divided into four parts. The first part of the text summarizes the director liability insurance, introduces some basic concepts of directors liability insurance, and systematically introduces the director liability insurance system. The second part is based on the description of the current situation of director liability insurance in China, from the legal system of our country and the legal problems of directors liability insurance contract. The third part is based on the research of the director's liability insurance system in the United States, analyzes the development process and the specific system design of the director's liability insurance system in the United States, and analyzes the legal problems existing in the development of the directors' liability insurance system in China. The fourth part is the suggestion to perfect the director liability insurance system of our country on the basis of drawing lessons from the experience of the American director liability insurance in view of the legal problems involved in the second part. In order to establish a director's liability insurance system in line with the national conditions of our country.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
[Abstract]:Director liability insurance originated in America in 1930's and developed and flourished in Anglo-American law system countries. The main function of directors' liability insurance is to protect the interests of directors and senior managers, especially in the context of the separation of ownership and management rights of modern companies. The governance structure of the company has gradually changed from the original "shareholders' meeting centralism" to the "board of directors centralism". It is important to note that while the rights of directors expand gradually, they should also bear the corresponding obligations and responsibilities. As a result, the risk of directors performing their duties is increasing, and the excessive risk limits their motivation to perform their duties. Therefore, the director's liability insurance is needed to transfer the risk faced by the director's senior executives in the management of the company. It is based on the system value of director liability insurance that our country introduced director liability insurance system at the beginning of 21 ~ (st) century. However, as a kind of professional liability insurance transplanted from foreign countries to our country, directors' liability insurance has been developed in the insurance market for more than ten years, but the insurance rate is still very low in listed companies in mainland China. Why is the legal system which has been proved valuable in the United States and other developed countries not popular among the listed companies in mainland China? There are two main reasons: on the one hand, there are obstacles in the legal system which is closely related to the development of director liability insurance system. First, the legal basis for direct regulation of directors liability insurance is insufficient, only two normative documents issued by CSRC; secondly, the civil liability system of directors in China is not perfect, the relevant provisions are too simple and lack of operability; third, The shareholder representative litigation system is not perfect. When investigating the directors' civil liability for breach of the duty of diligence, it is difficult for shareholders to prove that the directors have violated their diligence obligations, let alone let the directors bear the corresponding responsibilities; on the other hand, There are also some problems in the directors' liability insurance contract, such as copying the foreign clauses and not adapting to the national conditions. The above legal problems need to be improved either because of the internal need of the perfection of the system or the consideration of developing the director's liability insurance. Therefore, first of all, it should be clearly stipulated in the Company Law that the company has the right to purchase directors' liability insurance for its directors and senior managers, and to perfect the director's civil liability system and shareholder representative action system related to directors' liability insurance. At the same time, the existing director's liability insurance contract should be amended. This paper is divided into four parts. The first part of the text summarizes the director liability insurance, introduces some basic concepts of directors liability insurance, and systematically introduces the director liability insurance system. The second part is based on the description of the current situation of director liability insurance in China, from the legal system of our country and the legal problems of directors liability insurance contract. The third part is based on the research of the director's liability insurance system in the United States, analyzes the development process and the specific system design of the director's liability insurance system in the United States, and analyzes the legal problems existing in the development of the directors' liability insurance system in China. The fourth part is the suggestion to perfect the director liability insurance system of our country on the basis of drawing lessons from the experience of the American director liability insurance in view of the legal problems involved in the second part. In order to establish a director's liability insurance system in line with the national conditions of our country.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
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