法学杂志

康美药业案是推动我国独董制度变革的里程碑案例。为激活独董功能、保护中小股东权益、培育独董职业共同体、促进上市公司治理现代化，亟需从立法论、监管论、治理论、控制论、履职论、维权论、裁判论和评价论等八个方面完善独董制度。上市公司“独董”仅指“独立非执行董事”。应在《公司法》及配套法规中构建具有可诉性、可裁性和可执行性的独董规范群。独董是董事会决策参与者、公司合规监督者和专业顾问。但独董并非公司治理承重墙。为缓解独董压力，建议独董与公权力、自律监管权和市场力量协同推进公司治理现代化。应激活股东直接民主治理机制。独立性是独董的核心资产。应将独董选择权回归公众股东。要夯实独董专业性赋能机制。独董聘请的中介服务应前置于独董表决。要重构监管者与独董之间新型亲清监管合作关系，强调独董勤勉义务的特殊性，确立中庸折衷的理性独董履职标准，引入独董责任合理减免机制。对2022年证券虚假陈述司法解释中独董无过错认定规则的解释要体现独董友好型理念。应建立独董赔偿责任最高限额。健全独董激励机制，推动津贴市场化改革，导入独董责任强制险，推行独董股权激励计划，鼓励独董职业化建设。

The Kangmei Pharmaceutical case is a milestone case in promoting the reform of independent director system. In order to activate the function of independent directors, cultivate their professional community, protect minority shareholders and to modernize corporate governance, it is urgent to improve the independent director system from aspects of legislation, regulation, governance, corporate control, duty performance, rights protection, judgment and evaluation. “Independent directors” only refer to “independent non-executive directors”. It is suggested to build an independent director norm group that is actionable, adjudicable and enforceable in the “Company Law” and supporting regulations. Independent directors are decision-making participants of the board, corporate compliance supervisors and professional advisors. But they are not a load-bearing wall for corporate governance. In order to ease their pressure, they should work together with public power, self-regulatory power and market forces. It is recommended to activate the direct democratic governance mechanism of shareholders. Independence is the core asset of an independent director. It is proposed to return the selection of independent directors to public shareholders. It is necessary to empower independent directors. The professional reports of intermediaries hired by the independent directors should be submitted before their voting. It is necessary to reconstruct the regulatory partnership between regulators and independent directors. It is necessary to emphasize the particularity of diligence of independent directors, and establish the standard of reasonable person. It is necessary to introduce a reasonable mechanism for reducing and exempting the liability of independent directors. The interpretation of the 2022 Securities Misrepresentation Judicial Interpretation should reflect the independent director-friendly philosophy. It is suggested to establish a ceiling of compensation liability for independent directors. It is recommended to improve the incentive mechanism, promote the market-oriented salaries, introduce mandatory liability insurance, implement the shareholding programs, and encourage the professionalization of independent directors.