日本引进独立董事制度的经验及启示

2002年5月29日,日本完成战后50余年来规模最大的商法、公司法修改,其一大特色就是引进美国式的独立董事制度,改善日本公司的治理结构。以上市公司为主的大型公司设立独立董事还是强化独立监事,在法律上仅作任意性规定,交由公司自己选择适用;实行独立董事的公司,原来的监事制度随即废除,另设执行经理,而独立董事的责任也有别于其他董事,制度设置颇具合理性。反观我国上市公司引进独立董事制度的规则,有许多不足。我们应及早吸收他人的经验教训,将我国的制度性缺陷消灭在萌芽状态,为我国公司治理结构的合理性提供科学的法律基础。

Experience and Revelation from the Introduction of Independent Director System of Japan

May 29, 2002 witnessed the completion of the biggest amendment of Japan' s Commercial Law and Company Law after World War II. One of the distinctive features of the a-mendment was the introduction of the American independent director system for the gradual improvement of the management structure of Japan' s companies. For large and mainly public companies, whether setting up the post of an independent director or strengthening the system of independent supervisor is only discretionally regulated in law and can be decided by companies themselves. For those companies which practice " Independent Director System" , the original supervisory system is replaced by the post of executive manager and the responsibilities of the independent director are different from other directors. These changes in the system are fairly justifiable. In contrast, there is much room for improvement in China' s regulations regarding the introduction of the " Independent Director System" by Chinese public companied. We should waste no time to learn the lessons and gain the experiences from others in order to check the defects in the bud and to provide a scientific legal foundation for the establishment of an appropriate enterprise management structure in China.