董事责任改革迫在眉睫？--浅析英国董事责任的发展及独立董事的地位(英文)
邓健
【全文】
I. Introduction
Change is ubiquitous in contemporary society, and no where more so than in the company operations. Effective operations of companies contribute to the economy and society. However, corporate failure, of course, will always be with us. Enterprise creates prosperity but involves risk. No system of governance can or should fully protect companies and investors from their own mistakes. After the economic convulsions of 1997 and 1998 in Southeast Asia, the economics of the world are in a low tide. Governance shortcomings have contributed to falling markets. As we know, reform of company law is being actively debated in the United Kingdom. There is over 150 years history of UK Company Law, it “ has gone out of date and become encrusted with all sorts of amendments and case law”.[1] Radical changes are required to restructure the modern corporate governance system in the United Kingdom.
Executive and non-executive directors play a central role in UK corporate governance. As a company has no physical but only a legal existence, the management of its affairs is entrusted to the directors whose exact position in relation to the company is, however, rather hard to define.[2] The interest of directors and shareholders are always coherent and conflict, which becomes, an important governance problem. Non-executive directors, as a crucial role to improve company performance and accountability, were introduced in the in U.S.A in the 1960s. From the early 1980s onwards there was a growing awareness of the role of it in the UK,[3] and non-executive’s contributions in the effective and robust boards were widely recognized. The company Law Review noted “ a growing body of evidence from the US suggesting that companies with a strong contingent of Non-executive produce superior performance.”
Recently a voice raised to reform the present law on executive directors’ duties. They think the law is desirable in order to encourage companies to form long-term productive relationships with their employees, customers, and suppliers. Reformulating the board’s responsibilities might help in combating the short-term attitudes prevalent in the corporate sector that contribute to the neglect of co-operative relationships, and thereby increase the wealth-creating capacity of British business.[4] On the other hand, the debate of the role of non-executive directors never stops. What is the role of NED, the “watch dog” or “biggest and the most dangerous—nonsense”?[5] Are NEDs truly independent? …This essay will concentrate on the development of the law on director’ duties and the current debate surrounding the position of non-executive directors two issues to attempt to get a clue of the corporate governance framework.
II. Executive and Non-Executive Directors
All registered companies must now have directors. The private limited company must have at least one director, and there must at least two in other companies.[6] Anyone can be appointed as director unless disqualified by the Articles except for:
