董事勤勉义务的规范展开与司法适用

Although the new Corporate Law directly stipulates directors’ duty of diligence only in Article 180, its normative content regarding this duty is not confined to that single provision. A systematic interpretation of Articles 19, 67, 179, and 180 reveals that the rules on directors’ duty of diligence under the new Corporate Law can be expanded into at least three major dimensions. Firstly, at the level of basic norms, the duty to comply with the “requirements of laws, administrative regulations, and the corporation’s articles of association” should be regarded as the fundamental normative requirement of directors’ duty of diligence. Secondly, in terms of internal oversight, directors’ duty of diligence is manifested in two core responsibilities: One is to investigate abnormal circumstances in board resolutions; the other is to establish an effectively functioning internal control mechanism within the corporation. Thirdly, at the level of duty configuration, directors’ duty of diligence entails typified normative requirements. Under the new Corporate Law, this is reflected in the need to impose differentiated content of the duty of diligence on different types of directors, based on the size of the corporation, whether it is a state-invested corporation, and the division of powers and functions among directors within the corporation. To implement the rules on directors’ duty of diligence under the new Corporate Law in judicial practice, the key lies in clarifying the judicial review standards for this duty. China may consider introducing the business judgment rule, thereby providing a preliminary adjudicative framework and value guidance for relevant judicial practice. Of course, given the typified normative requirements of directors’ duty of diligence under the new Corporate Law, relying solely on the business judgment rule can hardly address the diverse and complex case scenarios in judicial practice. Therefore, introducing this rule is only the first step in remedying the current lack of judicial review standards for directors’ duty of diligence in China. In the future, a multi-layered system of review standards must be gradually established in judicial practice to fully respond to the complexities of corporate governance in China.