Exploring the Legal Responsibility of Directors,Supervisors,and senior managers in light of China's New Corporation Law(2005):With Focus on the Duty of Loyalty and Duty of Care

• Main Authors: Chao-yin Kuo, 郭昭吟
• Other Authors: none
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/93317144025173054401

碩士 === 東吳大學 === 法律學系 === 97 === The main purpose of the thesis is discussing Company Law of the People’s Republic of China 2005(CLPRC) ,regarding duty of loyalty and duty of care that corporate directors, supervisors, and senior managers should have. Both of the duties are the core of the amendments of CLPRC in 2005, as well as the essential value and issue of modern corporate governance. It is rooted and well developed in common law countries, and applied thoroughly in court cases and practice. The contents of the thesis are as following: The 1st chapter focuses on the motivation and purpose of this research. The 2nd chapter is about the legal obligation of directors ,supervisors and senior managers in corporate governance, especially focusing on the influence from the spirit of corporate governance on the China’s corporation law 2005.It also have the different upon duty of care,duty of loyalty and qualifications,which about directors, supervisors and senior managers between China’ Corporate Law 1993 and 2005.It also talks about legal vision of both of the duties and responsibilities that the above persons have in company Laws of Taiwan and China. The 3rd chapter describes the theory foundation regarding duty of care and duty of loyalty ,compared with the common law and the civil law.In common law,it’s about agency relationship and fiduciary relationship.In civil law,it’ about agency and trustee. The 4th chapter introduce the duty of loyalty.There are some legislative materials related to duty of loyalty.It also have some discussing in article 149 of China’s corporation law 2005,touch upon the every type the article have,as well as the usual type which obey the duty of loyalty.It concluding as following:The directors, supervisors, and senior managers of a company shall not exploit their position to accept bribes or other illegal income or wrongfully take over company property.The directors or managers shall not misappropriate company funds or loan such funds to others.The directors or managers shall not open accounts in their own names or in the names of other individuals for the deposit of the company's assets.The directors or managers shall not provide a guarantee for debts of a shareholder of the company or other individual(s) with the company's assets.The directors or managers shall not engage on their own behalf or on behalf of others in any business similar to the business of the company in which they hold.They shall not disclose the secrets of the company.The others are self-trading,relevant trade without authorization,and etc. The 5th chapter provides duty of care,and a review of “ standard of business judgment rule” in the US.It also takes about the duty of disclosure upon independent directors. The 6th chapter describes the criminal liability and the administrative liability.This chapter introduces the history of legislations and the orders of penal code in China when the obedience of duty of loyalty occurs. The 7th chapter is about civil liability.When directors, supervisors, and senior managers violate the rule about duty of loyalty and duty of care,they have to face the responsibility on compensation and the system of disgorgement.It already has the lawsuits about direct action and derivative action in China’s corporation law 2005.It also provides that independent directors and independent supervisors may be free of liability in some way which law permits. The 8th chapters is writer’s point of view and conclusion about duty of care and duty of loyalty.