獨立董事的法律義務與責任追究：國際經驗與中國方案

康美藥業案具有促使獨董勤勉盡責的積極意義，但賠償責任比例和數額等方面存在改進空間。美國獨董義務體系比較完備，可分為四大類，現實中獨董很少被追責，主要依賴聲譽機制進行激勵約束。由於國情存在諸多重大差異，我國不宜直接照搬美國經驗。2022年的證券虛假陳述司法解釋大幅降低獨董民事責任標準的做法值得商榷。一股獨大並非我國獨董制度的本質缺陷，關鍵在於完善法律責任體系，其路徑不應是限縮獨董職責範圍，而應優化責任標準，保持適當的責任壓力，促使公司選任優秀獨董，讓其發揮市場信號和公司治理的作用。我國應統籌改革公司法和證券法，健全獨董義務體系，適當設定法律責任標準，引入董事責任保險，並以獨董從公司所獲薪酬總額的5倍作為責任限額，在促使獨董勤勉盡責與避免寒蟬效應之間取得平衡。

The Kangmei Yaoye case has the positive effect of encouraging independent directors to work with care and diligence, but the compensatory liability, both in absolute terms and as a percentage, warrants reconsideration. The duties of independent directors in the US are relatively complete and can be divided into four categories, but independent directors have rarely been held liable, because reputational mechanism plays an important role. China should not directly copy the US experiences, as China’s local conditions are very different from those in the US. The recent judicial interpretation on civil liability for securities misstatements significantly reduces the liability risk for independent directors, which seems to have gone too far. The issue of single large controlling shareholders is not a fatal problem for the independent director regime in China, and the key issue is the perfection of legal liabilities. It should be done through optimizing liability standards, rather than narrowing down the scope of monitoring work for independent directors, so as to encourage listed companies to appoint better independent directors, allowing the latter to function as market signals and protection mechanisms from legal liability. It is suggested that China coordinate the revision of company law and securities law, improve the duty regime for in- dependent directors, set a proper standard of liability, establish director liability insurance, and limit the liability to five times the total remuneration received by the independent director from the company, with a view to encouraging fulfillment of care and diligence while avoiding chilling effects.