论德国监事会合规职责的制度内涵

The System Connotation of Compliance Responsibility of German Supervisory Board

在德国企业的实践中,合规的重要性与日俱增。监事会相应承担起若干与之相关的特定职责。《德国公司治理准则》建议企业设置合规管理体系、披露该体系的基本特征并为员工和第三人建立提示系统。监事会既有义务在董事会和经营管理层履行组织义务并保障在内部合规的过程中对其实施监督,也应保证自身符合合规的各项要求。前者指监事会须对经营管理进行伴随性、支持性或形成性三个层次的监督;后者则关注监事会中利益冲突的披露和化解、监事会决议存在瑕疵时的处理方式、顾问合同的缔结以及监事之间的相互监督。

Compliance is becoming increasingly important in the practice of German enterprises.The board of supervisors shall take a number of specific responsibilities related thereto.The German Corporate Governance Code recommends that enterprises should set up a compliance management system,disclose the basic features of the system and set up aprompt system for employees and the third parties.The board of supervisors not only has the obligation to supervise the board of directors and the business management in the process of fulfilling the organizational obligations and to ensure internal compliance with the process of its implementation of supervision,but also has the obligation to make sure that it meets the requirements of compliance.The former means that the board of supervisors must supervise the operation and management at three levels,which conclude incidental level,supportive level and formative level.The latter,however,focuses on the disclosure and resolution of conflicts of interest in the board of supervisors,the way to deal with defects in the resolutions of the board of supervisors,the conclusion of consulting contracts and mutual supervision between the supervisors.