上市公司独立董事的责任优化与制度适用

Liability Optimization and Institutional Application of Independent Directors of Listed Companies

摘要: 独立董事制度是现代公司治理结构的重要组成部分，在我国，独立董事制度的引入初衷是为了弥补公司内部监督机制的不足，但目前来看，独立董事制度并未完全发挥出其应有的价值。由于独立董事的义务和责任规定泛化以及新旧独立董事制度更替等因素，独立董事制度在权责认定、激励机制以及处罚判决方面的现行规定值得商榷。综合考量域外经验和中国国情，从比较法角度来检讨我国的独董制度的缺陷。为了完善我国独立董事法律责任体系，充分发挥其对上市公司规范运作的作用，应优化责任标准及适用，重视激励机制多样化，引入独董责任限额制度，进而推动上市公司治理结构的完善。

Abstract: The independent director system is an important part of the modern corporate governance structure, in China, the introduction of the independent director system was initially intended to make up for the inadequacy of the company’s internal supervisory mechanism, but at present, the independent director system has not fully exerted its due value. Due to the generalization of the duties and responsibilities of independent directors and the replacement of the old and new independent director systems, the current provisions of the independent director system in terms of the identification of powers and responsibilities, incentive mechanisms and penalties are questionable. Taking into account the overseas experience and China’s national conditions, the shortcomings of China’s independent director system are reviewed from the perspective of comparative law. In order to improve the legal liability system of independent directors in China and give full play to their role in regulating the operation of listed companies, we should optimize the liability standard and its application, pay attention to the diversification of incentive mechanisms, and introduce the liability limitation system for independent directors, so as to promote the improvement of the governance structure of listed companies.