独立董事民事法律责任研究

【作者】 郑媛；

【导师】 孙积禄；

【作者基本信息】 外交学院 ， 国际法， 2008， 硕士

【摘要】 随着我国新公司法、新证券法等法律的颁布施行,股东维权意识的增强,对上市公司中违法违规的独立董事的责任追究成为诸方关注的焦点。但是我国目前就独立董事法律责任的具体制度,在理论上尚有争论,在司法实践中亦几乎处于真空状态,这不禁为独立董事在我国的生存与发展起到了阻碍作用。面对这种情况,本文认为对负有监督职责的独立董事应当采取的态度是:理顺权利义务,划清责任界限,适当苛以责任,建立保障机制。首先独立董事与非独立董事相比较,独立董事的权利主要包括两大类,一是知情权,二是监督权,其中前者是后者的基础,后者是前者的目的所在。其次经过对独立董事的义务进行比较、界定,独立董事同普通董事一样负有忠实义务和注意义务。其中忠实义务的义务标准与普通董事无异,不因其是外部董事而降低。在注意义务方面,应当在一般理性人应有的注意程度的基础上,结合独立董事的个人专长来确定具体独立董事的注意标准。最后在民事责任方面,独立董事在违反义务时应以过错为归罪原则,同时在违反注意义务时,以重大过失为标准。同时本文还着重分析探讨独立董事应在何种情形下、承担何种程度的法律责任,由此希望能给独立董事的责任划定一个较为清晰的界限,一方面督促独立董事履行职责,对公司及股东负责,达到协助完善公司治理的目的,另一方面也为独立董事的责任构建一个屏障,使其免于遭受无辜诉讼,承担不必要的风险。并且在此基础上,本文提出对独立董事进行保护的相关措施,以期完善相关责任制度,使公司、股东、独立董事等各方权责分明、利益平衡。我们有理由相信,在中国,随着独立董事责任体系的建立,独立董事制度会逐步完善,其在公司治理中的作用也将更加突出。更多还原

【Abstract】 Along with the promulgation and implementation of the new corporation law and the new security law in China, the Chinese legal system has been further improved and the shareholders have lifted their awareness of protecting their legitimate rights. Consequently, it has become a common concern for various parts to call to account of those independent directors on board in charge of monitoring as watchdog in listed companies who are not law-abiding by conducting a violation against relevant regulations and laws. However, controversy in theory and the lack of regulations and judicial practices about the legal liability of independent directors in China severely hinders their existence and development. Facing to this situation, this thesis fosters such a conclusion that the proper attitude to be adopted towards the independent directors of board should be: the rights and obligations should be made clear, the limits of responsibilities should be clarified, corresponding responsibilities should be required of relevant person of charge and the protection mechanism should be established. In comparison with the normal directors in corporation, the rights of independent directors fall into two major categories. One is the right to know, while the other is the right of supervision with the former as the basis of the latter while the latter as the goal of the former. The same as the normal directors, independent directors take the duty of loyalty and care. The duty standard of loyalty of independent directors is not distinct and not lower than normal ones. Regarding to duty of care, the duty of care of those independent directors should be specified taking their personal expertise into consideration on the basis of average level of duty of care. In the aspects of liability, the principle of fault liability should be taken in case that independent directors fail to take the obligations. Moreover, gross negligence standard prevails when they breach the obligations of care. This thesis also takes emphasis on the liability that the independent directors should take under different circumstances in purpose of drawing a clear line for the liability of independent directors to urge them to perform their duties and perfect the corporation governance. Moreover, a barrier should be built to protect independent directors from innocent litigation and unnecessary risks. This thesis intends to bring forward a suggestion that relevant protective measures should be taken such as the establishment of independent director’s liability insurance system so that both the rights and obligations of corporation, shareholders and independent directors will be made clear and the interests will be more balanced. We have reasons to believe that along with its establishment and perfection of the independent director’s liability system, independent directors will play a more important role in corporation governance.更多还原