ON CASES AGAINST CORPORATE MANAGERS FOR BREACHING THEIR DUTY OF LOYALTY AND/OR DUTY OF DILIGENCE IN CHINA

Abstract

The statistics of 137 cases from 14 provinces or municipalities of China concerning the disputes of corporate managers’ duty of loyalty and duty of diligence shows that the majority of companies involved in such cases are those whose shares are not publicly traded (mainly limited liability companies and all sorts of foreign invested enterprises). Joint stock limited companies (including listed companies) rarely file lawsuit against their directors, supervisors, or senior officers. The duty of loyalty has been the center of most cases. Many cases pertain to issues that are not within the list of prohibited acts in the Company Law of the People’s Republic of China to directors, supervisors, and senior managers. Therefore, courts frequently make their judgments according to one of the general provisions of the Company Law. Courts conduct different forms of legal interpretations in their decisions. On one hand, in the majority of cases, courts tend to procedurally examine the questions of facts and to literally apply the law. Actually, the duty of loyalty and duty of diligence have been applied by many courts as “the duty of compliance with law.” On the other hand, a few decisions demonstrate that some courts examine cases under the doctrine of substance-over-form, showing their creative interpretations of the law. The focus of the judicial practice in this type of cases today in China is on how courts should explain and apply the general provisions in Article 148 (1) and Article 149 (1.8) of the 2005 Company Law of China (amended in 2013).