论董事问责的诚信路径

On directors’ accountability in China: Good faith path

The mode of deferential review on directors’ management decisions coincides with the requirements of adaptive efficiency, being conducive to encouraging directors’ tentative experiments. However, under the rule of business judgment, directors’ accountability requires for onerous burden of proof on the plaintiff, and the formal review of directors’ decisions and the uncertainty of the standard of care have rendered the duty of care almost an empty shell, and consequently the unfaithful conducts of directors between gross negligence and malice are always at large. The good faith path is not only a mechanism to fill the gap of accountability but an important mechanism to overcome the information asymmetry between shareholders and directors. The judicial practice of directors’ accountability in the 1990s produced a good faith path, and the good faith concept has been rejuvenated with creative changes, the standards of conducts become clear with the increasing operability of judicial reviews. In China, the standards on fiduciary conducts can be defined by the judicial interpretation of the Company Law, so as to incorporate such misconducts as intentionally causing the violation of law by company, failure to disclose candidly, abuse of power and gross disregard of responsibilities, hence inducing the good faith path to accountability. Zhu Yikun got his Ph.D in economics at Management School of Jinan University (1999) and LL.M at Southwest University of Politics and Law (1991). He is the executive dean and doctoral tutor of the Law School of Jinan University, and a legislative counselor of the standing committee of Guangdong Provincial People’s Congress, and a monitor of Guangdong Provincial Procuratorate. His research focuses on company law and corporate governance. He has twelve monographs published, including five law books in English language, esp. the book “China’s Business Contracts: Forms and Precedents” was published by Butterworth in 1997. Moreover, he has released over 100 papers in academic journals including China Legal Science and Chinese Industrial Economy. At present, he is leading a national bilingual course program on American and British commercial law (2008).