簡論公司董事勤勉義務(wù)
發(fā)布時間：2018-08-04 14:18
【摘要】：除引言與結(jié)語外,本文分三節(jié):董事勤勉義務(wù)的概念和理論基礎(chǔ)、具體內(nèi)容和適用、相關(guān)意見建議。第一部分,董事勤勉義務(wù)是指董事如善良管理人那樣盡自己最大的努力謹慎處理好公司事務(wù),實現(xiàn)公司利益最大化。在學(xué)界其理論基礎(chǔ)主要有下面三種。代理說是英美法系國家董事對外履行職責(zé)時法律地位的主流觀點,但我國董事不享有代理權(quán)并非公司代理人。信托說是英美法系國家關(guān)于董事對內(nèi)履行經(jīng)營管理職責(zé)時法律地位的主流觀點,但董事并不享有財產(chǎn)所有權(quán)且以積極管理風(fēng)險為手段。委任說是日本、我國臺灣地區(qū)的主流觀點,同時與公司機關(guān)實在說、民法上的善良管理人等多個概念相一致,所以本文認為委任說為我國董事勤勉義務(wù)的理論基礎(chǔ)。第二部分,董事勤勉義務(wù)的內(nèi)容包括技能、勤奮、謹慎與監(jiān)督義務(wù)四個方面。技能義務(wù)應(yīng)采用客觀標(biāo)準(zhǔn),無論對于普通董事還是專家型董事;勤奮義務(wù)主要表現(xiàn)在董事獲取決策所必須的數(shù)據(jù)、經(jīng)常參加董事會和董事會上充分的討論;謹慎義務(wù)是董事根據(jù)獲取的公司數(shù)據(jù),做出合理相信有利于公司最大利益的決策;監(jiān)督義務(wù)包括董事監(jiān)督高管義務(wù)和獨立董事監(jiān)督其他董事義務(wù),董事監(jiān)督高管通過公司內(nèi)控制度來實現(xiàn),獨立董事監(jiān)督其他董事通過聘請外部機構(gòu)調(diào)查、依法發(fā)表獨立意見與征集中小股東投票權(quán)等方式來實現(xiàn)。董事勤勉義務(wù)的適用前提是未違反忠實義務(wù),判斷依據(jù)主要是董事決策行為而非決策結(jié)果,主要規(guī)制對象是董事玩忽職守。第三部分,相關(guān)意見建議包括完善公司法和董事學(xué)會相關(guān)規(guī)定、人民法院謹慎適用經(jīng)營判斷規(guī)則和公司章程明確勤勉義務(wù)責(zé)任限額。董事學(xué)會應(yīng)當(dāng)制定包括董事道德操守、資格認定、行為準(zhǔn)則和處罰細則等內(nèi)容的自律性文件,充分發(fā)揮董事學(xué)會的自律功能。人民法院謹慎適用經(jīng)營判斷規(guī)則,信賴董事的商業(yè)決策能力,注重對決策的程序性審查而非實質(zhì)性審查。公司章程明確勤勉義務(wù)責(zé)任限額,既充分考慮了董事經(jīng)濟承擔(dān)能力又能增強董事的責(zé)任心,對于公司承擔(dān)的剩余損失可以通過董事責(zé)任保險進行分散。
[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.
【學(xué)位授予單位】：中國社會科學(xué)院研究生院
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D922.291.91
本文編號：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.
【學(xué)位授予單位】：中國社會科學(xué)院研究生院
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2015
【分類號】：D922.291.91
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