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Title: Designing and reforming the law of directors' duty of care, diligence and skill in mainland China : a comparative perspective
Other Titles: Cong bi jiao fa shi ye kan Zhongguo dong shi zhu yi, qin mian he ji neng yi wu de she ji yu gai ge
從比較法視野看中國董事注意, 勤勉和技能義務的設計與改革
Authors: Chen, Huan (陳歡)
Department: School of Law
Degree: Master of Philosophy
Issue Date: 2006
Publisher: City University of Hong Kong
Subjects: Corporate governance -- Law and legislation -- China
Corporation law -- China
Notes: CityU Call Number: K1327.C44 2006
Includes bibliographical references (leaves 167-174)
Thesis (M.Phil.)--City University of Hong Kong, 2006
ix, 199 leaves ; 30 cm.
Type: Thesis
Abstract: During the past years, problems about directors’ duty of care, diligence and skill are gradually exposed and apparently, reform of the law is necessitated in Mainland China. The new PRC Company Law 2005 came into effect in early 2006. There for the first time, directors’ duty of care, diligence and skill is set out in the law. This is commendable but not altogether satisfactory as the relevant provision is arguably too simple and general. Based upon comparative study on Chinese and Hong Kong company law, the writer shall present some suggestions on designing and reforming such duty in Mainland China. Some recent cases concerning independent directors reflected the public dissatisfaction towards inactive and negligent directors. Based on field interviews, statistical data and literature researches, it is concluded that in Mainland China, problems about directors’ duty of care, diligence and skill mainly exist with directors of large companies. Careful examination is devoted to the current law about directors’ duty of care, diligence and skill both in Hong Kong and in Mainland China. To a large extent, the experiences learned from Hong Kong may be borrowed in the reform of the law in Mainland China, though in some certain aspects, the distinct circumstances in Mainland China justify different choices. The influence of disqualification regime is also considered in this thesis. In Hong Kong, it is concluded that disqualification cases have a great bearing upon the general standard of directors’ duty of care, diligence and skill. However, the similar regime fails to play its due role in Mainland China. The writer will give some tentative suggestions on the reform of disqualification regime with the intention of helping improve the directorial competence in Mainland China. Apart from the substantive content of the duty, an appropriate regulatory framework is equally important to the implementation of the law in practice. What forms the legislature should choose to provide the duty is the primary question to be answered. Moreover, the function of contracts and company’s articles of association in regulating directors’ duty of care, diligence and skill will also be discussed. Finally, the liabilities for breach of the duty will be examined.
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