透视美国公司法上的董事忠实义务——兼评我国《公司法》对董事忠实义务之规定

集中管理模式之下的公司董事具有相当大的权力,股东与董事之间难免会产生代理成本,为此法律规定了董事对公司和股东负有信托义务。信托义务主要包括注意义务和忠实义务。我国现行《公司法》对董事忠实义务的规定不够完善,建议我国《公司法》扩大董事忠实义务责任主体的范围,规定举证责任分配,归入权的具体行使主体、行使方式、行使期限等。

Duty of Loyalty of Directors in American Corporate Law: Concurrently on China's Corresponding Regulations

Directors of a corporation enjoy enormous power under the centralized management in America and cost of agency is bound to be entailed between shareholders and directors.As such,it is provided in law that directors assume fiduciary duty to the corporation and its shareholders,which mainly includes duty of care and duty of loyalty.Unfortunately,no satisfactory provisions concerning duty of loyalty of directors can be found in China's existing corporate law.The present author proposes that in China's corporate law,more obligators should be included to take up the duty of loyalty and contribution of burden of proof be specified.Further,matters such as where a director infringes the interests of the corporation,who will initiate the derivative action,and how and when to return the awarded interests to the corporation should also be expressly provided by law.