중국의 독립이사 제도의 문제점과 개선방안
The Problems and Appraisal of the Independent Director System in China
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Abstract
On August 6, 2001, the China Securities Regulatory Commission issued the Guiding Opinion on Establishing the Independent Director Institution in Listed Corporations. This landmark document formally established the independent director institution in China under which a minimum of one-third of each listed corporation's board members shall be independent directors. Despite insufficient practical and theoretical bases, many people hope the independent director institution will be a panacea to the corporate governance problems entangling chinese listed corporations. Independent directors first appeared in the United States to cure the corporate governance problems of public corporations, which have widely dispersed shareholders. Independent directors were created to monitor the integrity and performance of management in order to make public corporations a more effective wealth-maximizing instrument for shareholders and a more socially responsible instrument for the public. The rationale behind the independent director institution in China differs from that in the United States: the institution in China primarily targets controlling shareholders rather than management. Instead of dispersed share ownership, the ownership structure of listed corporations in china is highly concentrated. The major corporate governance problem is that controlling shareholders use their advantageous position positions to expropriate the assets of listed corporations to the detriment of minority shareholders. This Article argues that the importation of the independent director institution to China is an important step toward improving corporate governance. Unfortunately it is unrealistic to count on independent directors to completely prevent exploitation by controlling shareholders and management, especially when listed corporations have not yet solved their structuring problems, and China has yet to formulate a sound legal environment. Under these circumstances, the independent director institution in China cannot avoid the same defects existing in independent director institution in the United States: namely, an inability to monitor and a lack of independence and incentive to remain objective. This Article discusses the defects of the independent director institution and provides some suggestions for its improvement in China.
참고문헌 (57)
- 한국상장회사협의회, "상장회사 주주총회 백서", ~ (2008), 2008.10
- 한국상장회사협의회, "사외이사의 독립성 및 전문성 제고방안", ~ (2007), 2007.12
- 國家工商行政管理總局培訓中心, "新公司法敎程" (2005), 中國工商出版社
- 기업지배연구센터, "2007年度中國上市公司100强公司治理平價", ~ (2007)
- 2004∼2006 南開指數: 中國公司治理狀況與趨勢, "中國公司治理評價報告", 南開大學公司治理結構綱, ~ (2007)
- 成濤, "關于獨立董事制度的比較硏究, 中國商法評論" (2007), 北京大學出版社
- 官欣榮, "獨立董事制度與公司治理" (2004), 中國檢察出版社
- 林廷機, "Business As Usual - An Analysis of the Role of Independent Directors in Mainland China, Hong kong and Taiwan", ~ (2004), 財金論文總刊, 2004.6
- Beijing Municipal Government, "Standards for Assessment of the Initial Establishment of a Modern Enterprise System in Beijing Large and Medium-Sized State-Owned Enterprises", ~ (2003), § 1⑼, Jan. 22
- Chien-Chung Lin, "Independent Director in China", ~ (2006), Waseda Law School, Mar. 9
- China Securities Regulatory Commission, "Principles of Corporate Governance for Listed Companies", Art., 49 (2002)
- Danhan Huang, "Problems Concerning Independent Directors Institution and Its Legal Environment in Corporate Governance Reform: China and World", ~ (2002)
- Donald C. Clarke, "The Independent Director In Chinese Corporate Governance", Del. J. Corp. L., 31(125), pp.169~ (2006)
- Guangdong Provincial Government, "Opinion on Strengthening the Administration of High-Level Management Personnel in Guangdong State-Controlled Listed Companies and Perfecting the Corporate Governance Structure", ~ (2000), § 2⑴⑵, Dec. 11
- Hangzhou Municipal Government, "Several Opinions on Further Fostering the Development of Large Enterprise Groups", ~ (2002), § 1⑵, July 16
- Hebei Provincial Government, "Provisional Measures for Standardizing the Governance of Company Legal Persons", Art., 19 (2000)
- Jian Lin, "Head of CSRC Raises Four Issues to Improve the Independent Director Institution", ~ (2004), Shanghai Securities Daily, Feb. 6
- JiangYu Wang, "The strange Role of Independent Directors in a two-tier Board Structure of China's Listed Companies", Compliance & Regulatory Jounal, (3), pp.54~ (2007)
- Jinan Municipal Government, "Opinion on Accelerating the Citywide Development of Industry", ~ (2002), § 2⑴, Mar. 7
- Liu, Q., "Corporate governance in china: Current Practices, Economic Effects and Institutional Determinants", CESifo Economic Studies, 52(2) (2006)
- Panorama Net, "Ranks of Independent Directors Quickly Enlarged", ~ (2003), Mar. 22, (http:
- Yian Deng, "Independent Directors Compete with Independent Directors", ~ (2002), Fin. & Econ. Times, Mar. 29
- A.L.I., "Principles of Corporate Governance: Analysis and Recommendations", ~
- Adolf A. Berle, "The Modern Corporation and Private Property" (1956), The Macmillan Company
- Angang Hu, "Corporate Governance in China in the Transitional Era: A review and Foresight", ~ (2002), Center of China Studies Tsinghua Unversity
- Bei Hu, "Independents Shunned by China Firms", ~ (2004), S. China Morn. Post, Feb. 7
- Betty M. Ho, "Restructuring the Boards of Directors of Public Companies in Hong Kong: Barking Up the Wrong Tree", Sing. J. Int'l & Comp. L., 1, pp.507~ (1997)
- Brent A. Olson, "Publicly Traded Corporations: Governance & Regulation", ~ (2004)
- Charles M. Elson, "The Enron Failure and Corporate Governance Reform", Wake Forest L. Rev., 38, pp.855~ (2003)
- China Securities Regulatory Commission, "Guidelines for the Articles of Association of Listed Companies", Art., 112 (1997)
- China Securities Regulatory Commission, "Opinion on Further Promoting the Standard Operation and Deeper Reform of Companies Listed Overseas", Art., 6 (1999)
- China Securities Regulatory Commission, "Draft Opinion on the Establishment of an Independent Director System in Listed Companies", ~ (2001), May
- China Securities Regulatory Commission, Guidance, "Opinion on the Establishment of an Independent Director System in Listed Companies", ~ (2001), § 1⑴, Aug. 16
- Cindy A. Schipani, "Corporate Governance in China: Then and Now", Colum. Bus. L. Rev., 2002, pp.1~ (2002)
- Cindy A. Schipani, "Corporate Governance in China: Then and Now", Colum. Bus. L. Rev., pp.1~ (2002)
- "Code of corporate governance for listed company in china"[URL]
- Donald E. Pease, "Outside Directors: Their Importance to the Corporation and Protection from Liability", Del. J. Corp. L., 12, pp.25~ (1987)
- Fujian Provincial Government, "Guidance Opinion on Accelerating the Reform of the System of Monitoring and Operation of Fujian State-Owned Assets", Art., 16 (2000)
- Gansu Provincial Government, "Proposals on Several Important Issues Concerning the Implementation of the Industrial Province-Strengthening Strategy", ~ (2002), § 3(2), Aug. 24
- Harold S. Bloomenthal, "Securities and Federal Corporate Law", ~ (2004)
- Ira M. Millstein, "The Active Board of Directors and Performance and Long-term Firm Performance", J. Corp. L., 27, pp.231~ (2002)
- James A. Fanto, "Directors' and officer's liability-chapter 3. board committees-", ~ (2006), Practising Law Institute
- James D. Cox, "Managing and Monitoring Conflicts of Interest: Empowering the Outside Directors with Independent Councels", Vill. L. Rev., 48, pp.1077~ (2003)
- Jiangxi Provincial Government Commission on Reform of the Economic System, "Opinion on Accelerating the Shareholding Reform of State-Owned Enterprises and Promoting the Diversification of Investing Bodies", ~ (2000), § 2⑴, May. 29
- Jin Xin Securities, "Analysis and Suggestions Concerning the Situation of Implementation of the Independent Director System in China's Listed Companies", ~ (2003), Aug. 8
- Minkang Gu, "Will an Independent Director Institution Perform Better than a Supervisor? Comments on the Newly Created Independent Director System in the People's Republic of China", J. Chinese & Comp. L., 6, pp.59~ (2003)
- Shenzhen Municipal Government, "Opinion on Implementing the Further Acceleration of the Reform and Development of Shenzhen State-Owned Enterprise", ~ (2001), Jan. 11
- Tong Lu, "Development of System of Independent Directors and the Chinese Experience in Corporate Governance Reform: China and World", ~ (2002)
- Victor Brudney, "The independent Director - Heavenly City Or Potemkin Village?", Harv. L. Rev., 597 (1982)
- Wu Jianxiong, "How Are Independent Directors Doing? An Investigation and Analysis of the Current Situation in the Implementation by Listed Companies of the Independent Director System", ~ (2002), Securities Times, Jan. 10
- Yong Kang, "Chinese Corporate Governance: History and Institutional Framework", ~ (2008), Center for Coeporate Ethics and Governance
- Yurong Dhen, "Study on Independent Director System in Corporate Governance", ~ (2009), Asian Social Science
- "NYSE Coporate Governance Rules", ~, § 303A.02(http:
- "Sarbanes-Oxley Act of 2002", ~ (2002)