论上市公司“董事会中心主义”以及“诚信义务”在公司治理中的制度归位

The Reasonable Role of the “Centralism of Board of Directors”and “Fiduciary Duty”in the Corporate Governance

"董事会中心主义"可以使董事更好发挥"代理人"的作用,"诚信义务"则可以完善董事会义务以及制约董事会权力。我国上市公司采用了"股东大会中心主义"的公司治理模式,导致董事会不能有效发挥其作用,不能对控股股东滥用控股地位侵害中小股东的情况做出制约,而诚信义务规制对象的局限性进一步加剧了这种情况。董事会也受到现有公司治理规则的"负面激励"。对此,我们可以将董事保护投资者的义务解释为"诚信义务",并且建立董事信息披露机制,让董事和投资者接受市场的检验,减少司法介入公司治理,使公司治理回到合理的轨道。

The “centralism of board of directors” can m a k e the director play a better role of the “ agent” , “fiduciary duty” can improve the obligation of board of directors and restrict the power abuse. Since listed companies in China adopt “centralism of shareholder meeting” in the corporate governance, the board of directors cannot play its role effectively and as a result fails to protect the small shareholders from the damage by controlling shareholder by abusing their status. Furthermore, the limitations of fidu-ciary duty has further aggravated the situation, and the board has also been restricted by the “negative incentive” of existing corporate governance rules. To address the issue, w e can interpret the duty of board to protect investors as the “fiduciary duty” , and establish the information disclosure mechanism of the board, so that the boards and investors could be subject to the test of the market, and as a result the judicial intervention can be reduced in corporate governance, and corporate governance m a y return to the reasonable track.