董事違反勤勉義務的責任範圍

The Scope of Director's Liability for the Breach of the Obligation of Diligence

中國公司法第一四七條於二○○五年（時為第一四八條）修訂董事、監事、高管人員負有忠實義務與勤勉義務；正式引進英美公司法受託義務（fiduciary duty）中的忠實義務（duty of loyalty）與 注意義務（duty of care）概念。特別是內容相對抽象的勤勉義務在中國的解釋與適用因不同法系、文化、甚至是政體的影響而面臨諸多挑戰。諸如因內涵難以類型化、主管機關的強力監控、股東代表訴訟的嚴格限制、民眾集體忽視法律等現象，讓上市公司董事的勤勉義務從股東的武器轉為監管機關的手段，也讓有限責任公司（特 別是中小企業）的董事因違反勤勉義務而可能承受過重的賠償責任。本文針對勤勉義務從法律體系、經典案例、社會現象三方探討 其實踐情況與未來展望，作為日後修法的建議。

Mainland China introduced the fiduciary duty, which included the duty of loyalty and the duty of care, to Article 148 (currently Article 147) of the Company Law in 2005. The Article stated that directors, supervisors, and senior managements owed the obligation of loyalty and the obligation of diligence. The relatively abstract obligation of diligence, which referred to the duty of care in common law, faced many challenges in Mainland China because of the differences between the legal system, the culture, even the form of government. The challenges are: (1) the hardness of categorizing the content of the obligation of diligence; (2) the strongly administrative control from the supervisory authority; (3) the severe restrictions on filing a derivative lawsuit; and (4) the ignorance of the law of the general public. These turbulences made director's obligation of diligence of a listed company became the weapon of the supervisory authority; however, this weapon was originally designed to protect shareholders rights. The troubles also led director's of a limited liability company to bear a huge amount of monetary damages for the breach of the obligation of diligence. This article focuses on the application of the obligation of diligence in Mainland China by examining its legal system, classic cases, and social phenomenon in order to offer a legislative proposal.