"董事会"的搜尋報告

董事是公司裡负责指导和管理公司事务的管理者。多个董事的统称，就是董事会。很多时候，董事会要选择其中一个人为董事会主席。
理论上说，控制公司的有两种实体：董事会和股东大会。实际上，不同的公司董事会的权力差别很大。小的私人公司里面，董事和股东一般就是同一个人，所以根本就没用真正的权力分割。对于大的上市公司，董事会一般会有很大的权力，各个董事的职责和管理权限也一般由个别专业的执行董事专门负责那些专业领域的事务（比如财务董事和市场推广董事）。
大型上市公司的董事会还有一个特点，就是董事会通常拥有实际的权力。机构股东（如养老基金或者银行）通常在董事会有自己的代理人，这样在股东大会的时候，相对于小股东，董事会能掌握投票结果。但是，最近也有一些运动，希望推动和提高机构投资者和小股东的发言权。[1] [2]

分类
以管理公司为目的的董事会的出现和发展贯穿于法律的发展史中。19世纪末以前，人们普遍认为，员工大会是公司的最高权力机构，而董事会仅仅是公司内的一个为员工大会中的股东设立的代理机构。

历史
在很多法律体系中，任命和解除董事都要经过股东大会上股东的投票表决。 此外，董事的合同经常赋予他们，即使被罢免，也可以获得赔偿的权力。另外会提供诱人的金手铐来阻止罢免的事情发生。

当选和除名
董事会在开会的时候行使权力。很多司法体系要求在开这些会之前，要明确的通知所有的董事，并且必须有足够多的董事到场才能作出任何决定。通常，没有事先通知但是董事们都到齐的情况下，会议也可以举行，但是要注意的是，没有提前通知能给会议产生的决定带来负面影响，因为少数董事可以做大量的游说工作来改变其他多数董事的判断。 但是，有些情况下，某个董事也可以通过个人行为或者个人的名义代理权来控制公司（另见：the rule in Turquand's Case).

行使权力
另见：信托责任
因为董事们行使控制和管理公司的权力，但是公司（至少理论上）是为股东利益服务的，故法律明确定义的董事所能履行的职责。这些职责是信托责任，类似于法律赋予信托职位的职责：代理人和受托人。
关于董事的职责，有2点需要指出：

董事们的职责是各自分立的（相对应的是，董事们权力的行使，是整体的行为），并且
这些职责是归公司所有，而不是其他任何实体。

职责
董事必须行事有诚信。这是一个主观的标准，董事要依据公司的利益来有诚信的思考，而不是仅仅满足法律上的基本要求。就算这对于提供担保的公司来说没什么表面上的利益。类似的，至少在概念上，给股东派发红利也对公司没什么好处。尽管如此，一个可行的方案是：
“法律不要求董事用一种不现实的纯粹的利他主义来生活，也不必在行使董事权力，遇到现实情况时保持理想的超然态度。”

"依据诚信的行为"
董事行使权力必须有恰当的目的。虽然在很多情况下，不恰当的目的很明显，比如董事为自己谋利益或者把投资机会转移到关系人那里，但是这类事情通常包含了背离董事必须行事诚信的原则。更大的问题出现了，如果董事确实是按照诚信行事，但是他的目的是被法律认为非法的。
1974年的一个案例（Howard Smith Ltd v Ampol Ltd [1974] AC 832）突出了一个少数人在董事会决策的作用的问题。在这个案例中，董事们在决定发放新的股票的权力方面，引起的争议。董事们被指责故意发放了大量的新股票仅仅是为了让特定的股东失去他的控股权。曾经有建议说发行新股的权力只能在有新资产的时候才能履行，但是后来被拒绝了，因为过于严厉，并且一些情况下，股东向大公司发现股票是保证本公司财务稳定的一种正当的行为，或者是一种协议出让公司采矿权的方式。

"适当的目的"
如果没有公司的许可，董事不能约束他们的决定权的行使，也不能以任何方式束缚在将来董事会上的投票。 就算是没有不当的动机和目的，也没有对董事个人的好处也不行。
这并不说明，董事会就不会同意公司签署一项会是公司进入特定程序的合同，这个合同中的条款会导致董事会的额外批准。公司依然是有义务的，但是董事也保有决定权来否决进一步的行动或条款（就算这违背了公司签署的合同，并且这个合同是董事会批准了的）。

"不受约束的决定权"
作为受托人，董事不能处于自身利益和公司利益冲突的位置上。法律上面的坦诚不能只是做，而且必须很明显的做出来，要积极主动的维护董事的行事原则，不能自以为自己的立场是好的而逃避了如上责任。一般来说，法律上把责任和利益冲突分成3类。

"职责和利益冲突"
根据定义，当董事涉及了一宗和公司的交易，他就不可避免的陷入他自己的利益（在交易重为自己牟利）与董事对公司承担的义务（保证公司在交易中的利益最大化）之间的冲突。当然规定是非常严厉的，即，就算利益冲突或者与董事职责有冲突仅仅是大家的猜测，董事也要把自己的所得交出来。
"A corporate body can only act by agents, and it is, of course, the duty of those agents so to act as best to promote the interests of the corporation whose affairs they are conducting. Such agents have duties to discharge of a fiduciary nature towards their principal. And it is a rule of universal application that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting or which possibly may conflict, with the interests of those whom he is bound to protect... So strictly is this principle adhered to that no question is allowed to be raised as to the fairness or unfairness of the contract entered into..." (emphasis added)
However, in many jurisdictions the members of the company are permitted to ratify transactions which would otherwise fall foul of this principle. It is also largely accepted in most jurisdictions that this principle should be capable of being abrogated in the company's constitution.
In many countries there is also a statutory duty to declare interests in relation to any transactions, and the director can be fined for failing to make disclosure.

和公司的交易
Directors must not, without the informed consent of the company, use for their own profit the company's assets, opportunities, or information. This prohibition is much less flexible that the prohibition against the transactions with the company, and attempts to circumvent it using provisions in the articles have met with limited success.
In Regal (Hastings) Ltd v Gulliver [1942] All ER 378 the House of Lords, in upholding what was regarded as a wholly unmeritorious claim by the shareholders, and is now regarded as settled law.

利用公司财产，机会，和信息
Directors cannot, clearly, compete directly with the company without a conflict of interests arising. Similarly, they should not act as directors of competing companies, as their duties to each company would then conflict with each other.
In practice, it is not wholly unusual to see directors serve for two or more companies in competing fields, but it is tacitly assumed that they may only do so if the companies consent.

和公司竞争
Traditionally, the level of care and skill which has to be demonstrated by a director has been framed largely with reference to the non-executive director. In Re City Equitable Fire Insurance Co [1925] Ch 407, it was expressed in purely subjective terms, where the court held that:
"a director need not exhibit in the performance of his duties a greater degree of skill than may reasonably be expected from a person of his knowledge and experience." (emphasis added)
However, this decision was based firmly in the older notions (see above) that prevailed at the time as to the mode of corporate decision making, and effective control residing in the shareholders; if they elected and put up with an incompetent decision maker, they should not have recourse to complain.
However, a more modern approach has since developed, and in Dorchester Finance Co v Stebbing [1989] BCLC 498 the court held that the rule in Equitable Fire related only to skill, and not to diligence. With respect to diligence, what was required was:
"such care as an ordinary man might be expected to take on his own behalf."
This was an objective test, and one deliberately pitched at a higher level.
More recently, it has been suggested that both the tests of skill and diligence should be assessed objectively.

Common law duties of care and skill
In most jurisdictions, the law provides for a variety of remedies in the event of a breach by the directors of their duties:

injunction or declaration
damages or compensation
restoration of the company's property
rescission of the relevant contract
account of profits
summary dismissal

Remedies for breach of duty
Historically, director's duties have been owed almost exclusively to the company and its members, and the board was expected to exercise its powers for the financial benefit of the company. However, more recently there have been attempts to "soften" the position, and provide for more scope for directors to act as good corporate citizens. For example, in the United Kingdom, the Companies Act 2006, not yet in force, will require a director of a UK company "to promote the success of the company for the benefit of its members as a whole", but sets out six factors to which a director must have regards in fulfilling the duty to promote success. These are:
This represents a considerable departure from the traditional notion that directors' duties are owed only to the company. Previously in the United Kingdom, under the Companies Act 1985, protections for non-member stakeholders were considerably more limited (see e.g. s.309 which permitted directors to take into account the interests of employees but which could only be enforced by the shareholders and not by the employees themselves. The changes have therefore been the subject of some criticism. [3]

the likely consequences of any decision in the long term
the interests of the company’s employees
the need to foster the company’s business relationships with suppliers, customers and others
the impact of the company’s operations on the community and the environment
the desirability of the company maintaining a reputation for high standards of business conduct, and
the need to act fairly as between members of a company

未来
While the primary responsibility of boards is to ensure that the corporation's management is performing its job correctly, actually achieving this in practice can be difficult. In a number of "corporate scandals" of the 1990s, one notable feature revealed in subsequent investigations is that boards were not aware of the activities of the managers that they hired, and the true financial state of the corporation. A number of factors may be involved in this tendency:
Because of this, the role of boards in corporate governance, and how to improve their oversight capability, has been examined carefully in recent years, and new legislation in a number of jurisdictions, and an increased focus on the topic by boards themselves, has seen changes implemented to try and improve their performance.

Most boards largely rely on management to report information to them, thus allowing management to place the desired 'spin' on information, or even conceal or lie about the true state of a company.
Boards of directors are part-time bodies, whose members meet only occasionally and may not know each other particularly well. This unfamiliarity can make it difficult for board members to question management.
CEOs tend to be rather forceful personalities. In some cases, CEOs are accused of exercising too much influence over the company's board.
Directors may not have the time or the skills required to understand the details of corporate business, allowing management to obscure problems.
The same directors who appointed the present CEO oversee his or her performance. This makes it difficult for some directors to dispassionately evaluate the CEO's performance.
Directors often feel that a judgement of a manager, particularly one who has performed well in the past, should be respected. This can be quite legitimate, but poses problems if the manager's judgement is indeed flawed.
All of the above may contribute to a culture of "not rocking the boat" at board meetings.

Failures
In the United States, the Sarbanes-Oxley Act (SOX) has introduced new standards of accountability on the board of directors for U.S. companies or companies listed on U.S. stock exchanges. Under the Act members of the board risk large fines and prison sentences in the case of accounting crimes. Internal controls are now the direct responsibility of directors. This means that the vast majority of public companies now have hired internal auditors to ensure that the company adheres to the highest standards of internal controls. Additionally, these internal auditors are required by law to report directly to the audit board. This group consists of board of directors members where more than half of the members are outside the company and one of those members outside the company is an accounting expert.

Sarbanes-Oxley Act

Alternate director
公司
股份有限公司
公司治理
Corporate titles
Executive director
Finance director
董事经理
非执行董事