Against the backdrop of long-term regulation of the independent director system in listed companies in China,on December 29,2023,the amendment to the Company Law extended the independent director system to the governance structure of non-listed joint-stock companies,facing a legislative void in the regulation of independent directors.The functions of independent directors should include optimizing internal corporate governance and protecting external investors,which respectively constitute the basis for independent directors to bear legal obligations under company law and securities law.However,in legislation and practice,these two aspects are often confused.The fiduciary duty rules for directors can be referenced for independent directors,but the limitations of independent directors in accessing information should be acknowledged.They should bear a more lenient standard of responsibility compared to executive directors,evaluating whether they are diligent and responsible in the spirit of business judgment rules,and it is not advisable to blindly expand the scope of their legal obligations.When determining whether independent directors should bear personal liability,a mechanism for foreseeable responsibility reduction with reasonable remedial scope should be established,including provisions for exemption in the articles of association,director liability insurance,and rules on the limitation of compensation liability.
关键词
单层制改革/独董制度/信义义务/商业判断/勤勉尽责/责任减免
Key words
Single-tier system reformation/Independent director system/Fiduciary duty/Business judg-ment/Diligence and responsibility/Liability reduction
维普
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