公司治理中董事的职责-兼论独立董事的作用(英文)
Duties of Directors in Corporate Governance Framework
谷啸
【全文】
Duties of Directors in Corporate Governance Framework
INTRODUCTION
The management of a company is vested in its directors and, the issue of corporate governance is generally regarded as perhaps the most important issue in company law, the question of the duties that directors owe is a critical one. A director on board should be a person who acts bona fide in the interest of the company with capacity to earn profits for the company. A director has unlimited liability for any resultant loss where he (or she) fails in his (her) duty to the company. With the development of corporate governance, the non-executive director acts increasingly important role in the corporate governance framework. Non-executive directors are generally regarded as those directors who, unlike their executive colleagues, do not hold any executive or management position in the company in addition to their role as a member of the board. Like other directors of a company, non-executive directors have to comply with the duties of directors and face the same potential liability as executive directors. In Re Continental Assurance Co of London plc (unreported: 27 April 2002), Mr Justice Park said:
“… I cannot refrain from remarking that, if the non-executive directors were liable to pay millions of pounds to the liquidators in this case, it is hard to imagine any well-advised person ever agreeing to accept appointment as a non-executive director of any company. I would not on that account shrink from deciding this case in favour of the liquidators if I thought that they had established what they needed in order to succeed. However, I readily acknowledge that it is a source of some relief to me that, in my judgement, the liquidators have not done that.”
This essay will concern the source of the Judge’s relief in the light of (1) the historical, recent and prospective development of the law on directors’ duties and (2) the position of non-executive directors in the corporate governance framework.
(I) The Law Governing Directors’ Duties
The case law on directors’ duties which has developed slowly over about 150 years, often drawing on even older concepts from the law of trust. The duties of directors broadly fall into two categories, fiduciary (or equitable) duties and common law duties of care and skill, which arise at common law. This is the result of the idea that the director has two types of function which are treated separately by the law. From one angle, it is often stated that directors are trustees and that the nature of their duties can be explained on this basis. From the other angle, directors must take risks in an attempt to earn profits for the company and it’s members. Their general purpose is the protection of present and future shareholders benefits, which are generally expressed as being owed to the ‘company’.
(I.I) Fiduciary Duty
The word “fiduciary” refers to trust and confidence. “A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence” . Based on the assumption that directors are always considered as trustee, it is often stated that they owe fiduciary duties in respect of those assets. The basic principles are listed as follows.
