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Lastly, current legislation fails to illustrate when supervisor or independent directors’ nonfeasance appears, what legal liabilities they should bear. The current relevant provision is Art 150 of The 2006 Company Law of the PRC, it prescribes as: “ Where any director, supervisor or senior manager violates any law, administrative regulation, or the articles of association during the course of performing his duties, if any loss is caused to the company, he shall be liable for compensation. ” But it doesn’t clarify the result that when the supervisor fails to perform his or her duty. As a general principle, independent directors’ powers and duties come hand in hand. In Art 150, independent directors should be treated as regular directors. Therefore, they face the same problem in this provision.
Conclusion
The dual supervisory mechanism of listed companies in China is a brandnew module which attempts to reap the full benefits of double safeguard and to improve the corporate governance of Chinese listed companies. However, there are a considerable of issues arising from practice. The double safeguard is still at its early stage. A range of challenges will be met and great efforts shall be made. Based on the brief analysis of supervisory board system and independent director system in this article, It appears that Perfection and Coordination of the two systems become a pivotal issue worthy of theoretically researched and practically enforced. It is suggested that supervisory board system and independent director system should keep abreast in the course of corporate governance in Chinese listed companies. They are like two wings of a plane, keeping the balance of corporate governance framework. It should be noted that nonenforceable legislation should be avoided. Finally, we should also notice that it is essential to substantially apply current laws and regulations instead of taking them as decoration. Only in that way can help ensure that the good governance can be maintained over time through a system of checks and balances and lead to the real success of corporate governance in Chinese listed companies.
【注释】 Zhao Wanyi, Gongsi Zhili Falv Wenti Yanjiu, (Beijing: The Law Press, 2004), p6-p16.
The 2006 Company Law of PRC, Art 52.
The 2006 Company Law of PRC, Art 118.
see《Shang shi gong si zhang cheng zhi yin》, Art 46.
The 2006 Company Law of PRC, Art 118.
The Guideline Opinion, Art 4.
《Zhongguo zi ben shi chang xi lie diao cha bao gao zhi yi· Zhongguo du dong diao cha]Zhongguo du dong sheng cun xian zhuang》,May 27,2004 page 6.
The Guideline Opinion, Art 7(5).
Gu Mingkang, “ Will an Independent Director Perform Better than a Supervisor? Comments on the Newly Created Independent Director System in the People''s Republic of China”（2003）, 6 J. Chinese & Comp. L. 59，Journal of Chinese and Comparative Law，p59.
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