董事忠实义务及其扩张

董事忠实义务在本质上是董事信义义务,与勤勉义务并列,成为约束董事行为的法定机制。董事忠实和勤勉义务均建立在公司与董事之间的信义关系基础上,均以维护公司整体利益为宗旨,但规制重点不同。忠实义务主要规范董事与公司之间利益冲突关系,勤勉义务旨在推动董事发挥聪明才智,两者共同成为评价董事履职的主要标准。忠实义务与民法中禁止自己代理和双方代理的规则之间关系密切,但在制度功能和义务要素上仍有重大差别,不能彼此替代或混为一谈。随着现代社会中公司交易复杂化以及公司集团现象普遍化,规制公司与董事利益冲突的公司法规则正在从“绝对禁止”向“禁止缓和”发展,忠实义务主体则已适度扩张至控股或主要股东,成为补充调整股东与公司关系的特殊机制。

A Director's Duty of Loyalty and Its Expansion

A director'duty of loyalty is essentially a director's fiduciary duty which is juxtaposed with the duty of diligence to become a legal mechanism of restricting a director's conduct.Both the duty of loyalty and the duty of diligence are based on the fiduciary relationship between the company and a director,and for the purpose of protecting the overall interests of the company,but their focuses of regulation are different.The duty of loyalty primarily governs the conflict of interests between a director and the company,whereas the duty of diligence aims to prompt a director to give full play to his/her ability and wisdom,both jointly constituting main standards for evaluating a director's performance.The duty of loyalty is closely related to rules in civil law that prohibit self-agency and dual-agency,but there are still significant differences in the institutional functions and elements of the duties,thus they cannot be mutually substituted or confused.With the increasing complexity of corporate transactions and the prevalence of corporate groups in modern society,rules in the corporate law regulating the conflict of interests between a companies and a director are developed from"absolute prohibition"to"moderate prohibition",and subjects of the duty of loyalty has been moderately expanded to cover the controlling or major shareholders and the duty of loyalty has developed into a special mechanism to supplement the traditional rules governing the relationship between shareholders and the company.