| 摘要: |
| 基于权力（利）、义务、利益、责任与风险相匹配的基本逻辑，新《公司法》既要健全董监高的差异化公平问责规范体系，也要建立人性化合理减免责任制度。董监高问责能力取决于其职位的含权量、含金量、实际控制力与影响力，也取决于所在公司治理实况。要重点锁定并严惩关键少数者，严格区别独董与内部执行董事的法律角色。董监高责任应以过错责任为主、严格责任为例外。为精准识别董监高过错，建议采取法商、德商、智商、情商合一的理性人标准。要坚持责任自负为主、连带责任为辅。连带责任规范要保持统一化与谦抑化，赋予董监高在承担连带责任后的法定追偿权。要坚持有限责任为主、无限责任为辅。董监高对第三人不负责任为原则，负责为例外。建议精准甄别董监高个人责任与公司法人责任。章程或公司决议对法定代表人代表权的限制只要登记、备案或公示，即可对抗相对人。建议导入商事判断规则，允许公司自主豁免或减轻董监高责任，要求董监高自担最低责任限额，导入董监高责任保险制度。董监高问责机制要与股权激励相匹配。 |
| 关键词: 差异化责任 职务行为 过错责任 有限责任 连带责任 商事判断规则 |
| DOI： |
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| 基金项目:全国人大常委会法工委 2019年度重点课题“公司法修改研究” |
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| On the New Requirements of Entrepreneurship for the Reconstruction of the Director Liability System: The Perspective of Accurate Accountability, Reasonable Fault Tolerance and Tolerance of Failure |
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Liu Junhai
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| Abstract: |
| Based on the basic logic of matching power （right）, duty, benefit, liability and risk, the new Company Law should not only improve the differentiated and fair normative system of accountability of directors, but also establish a humanized and reasonable system of liability reduction. The accountability of directors depends on the power, benefit, actual control and influence of their positions, and also depends on the corporate governance. It is necessary to focus on targeting and severely punishing key corporate leaders, and strictly distinguish the roles of independent directors and executive directors. The liability of directors should be mainly based on faulty, with strict liability as the exception. In order to accurately identify the faults of directors, it is recommended to adopt the reasonable person standard that combines legal quotient, moral quotient, IQ and emotional quotient. It is necessary to insist on self-responsibility as the mainstay, supplemented by joint and several liability, which should be universal and modest. The directors should be entitled to recover after assuming joint and several liability. It is necessary to adhere to the principle of limited liability and supplemented by unlimited liability. In general, directors are not responsible for third parties with exceptions. It is recommended to accurately distinguish the personal liability of directors and the corporate liability. The restriction on the agency authority of the legal representative by corporate constitutions or resolutions can be used against the counter party as long as it is registered, filed or publicized. It is proposed to introduce business judgment rule to allow companies to independently exempt or reduce the liability of directors, require directors to bear the minimum liability limit, and introduce D&O insurance system. The accountability mechanism of directors should match the shareholding incentive mechanism. |
| Key words: Differentiated Liability, Performance of Duty, Fault Liability, Limited Liability, Joint and Several Liability, Business Judgment Rule |
