第16章 Company directors 公司董事 1. 董事的角色以及不同的董事 1.1 The role of directors
•A director is a person who is responsible for the overall direction of the company's affairs. In company law, director means any person occupying the position of director, by whatever name called. Any person who occupies the position of director is treated as such, the test being one of function. The directors' function is to take part in making decisions by attending meetings of the board of directors. 董事负责公司事务的整体领导。根据公司法，只要占据了董事的职能，不管他对外称谓是什么，他就是董事。界定在于董事的功能=是否参与会议，做出决定
1.2 A company may have several different types of directors, each of which are subject to the duties and obligations outlined later in this chapter. The types of director are:公司可以有好几种不同各类型的董事，各自有不同的权利和义务。
(a) Executive director 执行董事 –An executive director is a director who performs a specific role in a company under a service contract which requires a regular, possibly daily, involvement in management.跟公司有服务合同，负责公司日常管理。
(b) Non‐executive director 非执行董事–A non‐executive director does not have a function to perform in a company's management but is involved in its governance. E 不是公司全职职工，外聘来的，不参与公司管理，但参与公司重大事项决定，判断ED的决议是对个人有利还是对公司有利。如果他的参与，并没有辨识一个Unlawful决议，那么他也要承担责任。董事会支付NED费用，按出席会议的次数发放。
‐ Contribute an independent view to the board's deliberations ‐ Help the board provide the company with effective leadership
‐ Ensure the continuing effectiveness of the executive directors and management ‐ Ensure high standards of financial probity on the part of the company
‐ Non‐executive and shadow directors are subject to the same duties as executive directors. (c) Managing director (MD) (The Chief Executive Officer ) 董事经理，又CEO–a company may optionally appoint one or more managing directors who have the implied actual authority to enter into any commercial contracts on behalf of the company and carry out overall day‐to‐day management functions.公司可以任意指定一个或多个MD，MD是有暗示授权可以签署任何公司的商业合同，执行日常经营指导。
(d) Shadow director影子董事 –a person whose instructions the board are accustomed to follow (though this does not extend to professional advisors such as auditors) 背后指令公司，范围不涉及：专业咨询师或审计师
举例：A让儿子BC开公司，拉原来的会计D入伙做账，并让他声称是董事。A影子董事，BC法律上的董事，D事实上的董事。
(e) Alternate director 替代董事 –a person who acts in place of another director 因病临时替代的董事所做的决定，如果有事，他也要承担责任。
(f) De facto director事实上的董事–anyone who holds themselves out as a director
(g) De jure director 法律上的董事‐Most directors are expressly appointed by a company
(h) Number of directors ‐Every company must have at least one director and for a public company the minimum is two. 一个公司至少1个董事，股份公司至少2个。
(i) The board of directors 董事会 ‐The board of directors is the elected representative of the shareholders acting collectively in the management of a company's affairs. 董事会是选出的股东代表，参与管理公司事务。
(j) The Chair 主席 ‐a company's Chair (or Chairman) is responsible for leading the board and ensuring its effectiveness. This is a very distinct role from that of the CEO/MD, who is responsible
for leading the company’s operations. 主席的责任是领导董事会，确保有效率运作。他不同于CEO/MD，他们负责领导公司的运作。
2. How directors are appointed, lose their office or be subject to a disqualification order 2.1 Appointment of directors
2.1.1 Appointment of first directors 第一个董事的指派
The application for registration delivered to the Registrar to form a company includes particulars of the first directors, with their consents. On the formation of the company those persons become the first directors. 申请注册，并递交注册官，需要他们的同意。一旦公司成立，这些人就成为第一个董事。
2.1.2 Appointment of subsequent directors 今后董事的指派
It can be either to replace existing directors or as additional directors.
By ordinary resolution of the shareholders, and by a decision of the directors. 新人代替旧人，或加入新人.需要通过股东决议，或者董事决定。 2.1.3 Publicity 对外公示
In addition to giving notice of the first directors, every company must within 14 days give notice to the Registrar of any change among its directors. This includes any changes to the register of directors' residential addresses. 第一个董事指定后的14天内，需要通知注册官。如果更改董事，包括地址变更，也要通知。 2.1.4 Age limit 年龄限制考点
The minimum age limit for a director is 16 and, unless the articles provide otherwise, there is no upper limit.最低16周岁，没有上限。
2.2 Directors can be losed their office in the following ways: 董事失去职位
a) Removal–by ordinary resolution, with special notice (28 days) 罢免：普通决议，28天通知期 b) Resignation –which must be in writing 辞职：书面形式，不可撤销
c) Retirement –not standing for re‐election at the end of their term F 退休，不连任 Retirement and re‐election of directors
The model articles for public companies provide the following rules for the retirement and re‐election of all directors ('rotation') at AGMs.
(a) At the first AGM of the company all directors shall retire.
(b) At every subsequent AGM any directors appointed by the other directors since the last AGM shall retire.
(c) Directors who were not appointed or re‐elected at one of the preceding two AGMs shall retire. Directors who are retired by rotation are eligible to offer themselves for re‐election. This mandatory retirement of directors provides another control over their performance. Rather than having to go through the process of seeking a resolution to remove a director, members have the opportunity every three years to dispose of an underperforming director by simply not electing them.
d) Termination per the articles –failure to comply with any given requirement of the company’s articles i.e. not participating in majority decisions 没有满足公司章程要求，譬如3个月内未出席公司重大决策/会议。章程规定满2年届满。
e) Disqualification 取消资格考点–under the conditions laid out by the Company Directors Disqualification Act 1986 (CDDA 86):
•Misconduct in connection with companies, including convictions for indictable offences connected to forming or running companies, and persistent breaching of filing rules 行为不当：包括跟运营公司相关的，可提起公诉的罪行；坚持违反归档原则
•Unfitness to run a company, relating to company insolvency or investigations by the Department
of Trade and Industry (DTI) 经营公司不合适，遭到了商业工业部调查，譬如垄断。
•Other matters, including involvement in fraudulent/wrongful trading, bankruptcy, being unsound of mind 其他，包括欺诈交易，不当交易，董事其他外债未还清，心智失常
•2.3 The CDDA 86 allows the court to disqualify anyone from being not only a director, but also a liquidator, administrator, receiver, or manager of a company. Disqualification orders last for periods ranging 2‐15 years. CDDA86还可以取消其他人的资格，包括清算人，监督人，接管人，公司经理。取消资格的命令有效期可持续2‐15年。 3. 区分董事会，MD和个人董事的权利
3.1 Directors’ powers are derived from the AoA of the company, and the laws of agency. The
board of directors may exercise ‘all the powers of the company’, though this power is given to the board, not individual directors. 董事的权利来源于AOA，以及代理法。董事会可以履行公司所有的权利，AOA赋予董事会，董事会赋予董事。所以最有权利的不是董事个人。 3.2 Individual directors only have the power to bind the company if they have: 个人董事仅在3种
情况下约束公司
(a) Express actual authority –per their service contract, the articles, or delegated by the board 明示实际授权，来自于服务合同，公司章程，或董事会授权。
(b) Implied actual authority –from the position held, such as the MD 暗示条款，如对MD的授权 (c) Apparent authority –where the director holds themselves out表见代理 案例：Freeman and Lockyer v Buckhurst Park Properties
4. Explain the duties that directors owe to their companies 董事对公司的义务
4.1 Directors’ general duties 董事的一般义务
The CA 2006 has codified directors’ duties into a set of seven general duties a) Duty to act within powers 权利内的义务
Director’s have a duty to act in accordance with the company’s constitution, and to exercise his powers for the purposes conferred. 董事行为依照公司章程，以合适目的来行为。
What constitutes proper purpose is defined by the circumstances under consideration with a good example being the allotment of new shares. In these instances directors must exercise their powers for a proper purpose per: 发行新股是个很好的例子。合适的目的包括： Not to facilitate a takeover 不能为了便利别人收购而发行新股 案例：Howard Smith v Ampol Petroleum (1) A公司恶意收购R，恶意收购公司需要51%股份。R不愿意被收购，发行10W新股给H，理由是2艘游轮要新建，所以定向增发。于是H变成控股股东，还反告A。法院认为，R发行给H的理由是虚假的，只是为了便利H收购，所以目的是不合适的。
Not to prevent a prospective takeover 不能为了防止预期收购而发行新股
案例：Hogg v Cramphorn (2) H要约收购C，C不愿意，于是C发行新股给当前股东，让H不能变成控股股东。于是H告C，他认为C发行新股没有合适的目的。 Though such breaches may be retrospectively ratified 虽然违反，这些发行还是会被追认的。
案例：Bamford v Bamford (3) B发行了5W股，来防止A收购。这个提议是通过股东同意的。 所以，如果AOA规定，董事可以发行新股；而且股东都同意了，董事在授权范围内行使；即使发行目的不合适，仍然被追认的，有效的。
b) Promote the success of the company 促进公司成功
A director has a duty to act in a way he considers, in good faith, would be most likely ‘to promote the success of the company for the benefit of its members as a whole’. 只要是促进公司，有利于成员的整体利益。
Unfortunately the CA 2006 does not define what ‘promote the success’ means and although it is felt to relate to improving the long‐term returns to shareholders it is only in time via case law that a true definition will emerge.考点 只要促进公司的长期回报，则认为促进公司成功。现在只有成文法，还没有案例法，所以急需案例来完善。
In exercising this duty directors must have regard to the following factors:
(1) The likely consequences of any decision in the long term, 任何决定的长期结果 (2) The interests of the company’s employees, 是否照顾公司员工利益
(3) The need to foster the company’s business relationships with suppliers, customers and others, 促进与供应商，客户或其他相关企业的商业关系
(4) The impact of the company’s operations on the community and the environment, 公司运作对社会和环境的影响
(5) The desirability of the company maintaining a reputation for high standards of business conduct, and 维持公司高标准的声誉
(6) The need to act fairly as between members of the company 公司所有成员间的义务是否公平 c) Independent judgment 独立判断
This is a simple duty that states directors must exercise independent judgement. They should not delegate their powers of decision‐making or be swayed by the influence of others. Directors may delegate their functions to others, but they must continue to make independent decisions.
董事必须独立判断,不能被被人影响而摇摆不定.他可以将部分功能授权别人(譬如公布红利),但这个授权不包括决定权.
This duty is not infringed by acting in accordance with any agreement by the company that restricts the exercise of discretion by directors, or by acting in a way authorised by the company's constitution.
这个独立做决定的义务不能违反公司章程的授权和酌情考量的权利. d) Reasonable skill, care and diligence 合理技能,关注和勤勉
A director has a duty to his company to exercise reasonable skill, care and diligence and this is judged by two ‘tests’:
(1) An objective test 客观测试 – 是否是称职的
Did the director act in a manner reasonably expected of a person performing the same role? 举例：a competentperson
(2) A subjective test 主观测试 – 技能达到程度
Did the director act in accordance with the skill, knowledge and experience that they actually have? 举例：Degree of skill
案例：Dorchester Finance v Stebbing (4) 金融公司有ABC董事，A银行家，B市长，C只有他实际管事。AB签字但不了解具体情况，C利用AB不关注实施诈骗。显然AB是不称职的董事。
e) Avoid conflicts of interest 避免利益冲突
Directors had traditionally faced a very strong fiduciary duty诚信的义务not to benefit personally from any commercial opportunities that came their way as a result of their directorship. In such
cases the directors would have required permission of shareholders before proceeding: 不能利用商业机会为自己谋福利，除非得到股东同意。
案例：IDC v Cooley (5) –director acts dishonestly 董事行为不诚实。Cooley是IDC董事，
在代表IDC期间发现商机，于是假装退休，继续与对方签合同，赚取高额利润。后被IDC获知。法官认为，商机源于IDC，Cooley行为不诚实，所以利润归IDC。
案例：Regal (Hastings) Ltd v Gulliver (6) –failure to gain permission of the company 没有得
到公司允许。母公司注资子公司，帮助子公司收购其他企业，后子公司股票大涨，母公司未经许可抛售股票。于是子公司告母公司股东，法官认为，虽然抛售行为不是故意为了拉低股票，但此行为可能影响子公司利益，是不合适的。
案例：Peso Silver Mines Ltd v Cropper (7) –company declined the opportunity 如果公司拒
绝交易机会。Cropper提出的机会未必会让公司获利，因为这种不确定性，所以公司有权拒绝，完全合理。
The impact of the CA 2006 on private companies is that independent directors may now authorise such transactions unless the AoA prohibits such authorisation. 有限责任公司的独立董事，被授权可以做这些交易，除非AOA明确规定不授权。
•For public companies such authorisation by independent directors must be expressly permitted by the AofA. 但股份有限公司的独立董事，必须在AOA中明确允许，才可以做。 f) Benefits from third parties 从第三方获利
Directors are forbidden from accepting benefits from third parties, including bribes. This duty cannot be overridden by board authorisation as per conflict transactions above. 董事是决不允许从第三方获利，包括受贿。即使股东会授权，也不可以这么做，明令禁止！ g) Interest in a transaction 交易中获利
At any point a director becomes aware that they have any interest in a contract with the company this must be disclosed to the full board at the next board meeting. 如果在公司交易中获利，必须在下一次股东会表决前公开。
4.2 Directors’specific duties 董事的特别义务
Substantial Property Transactions 实质财产交易‐ asset's value < £5,000, or less than 10% of Directors or any person connected to them may the company's asset value. 无需批准 not acquire a non‐cash asset from the company ‐ All sales of assets with a value exceeding without approval of the members. £100,000 must be approved. 需要批准
‐ Directors'service contracts lasting more Service contracts 服务合同
The company must keep available for inspection than two years must be approved by the copies of all directors’service contracts both members.
during their service and for at least one year ‐ Non‐contractual payments to directors for after they have expired. loss of office must be approved by the
members.
Loans and quasi loans 贷款和准贷款 ‐ Loan > £10,000 in value. 需要批准
Any loans given to directors, or guarantees ‐ Expands section 197 to prevent provided as security for loans provided to unapproved credit transactions by the
company for the benefit of a director of directors, must be approved by members。
over £15,000 in value (PLCs only).
‐ Directors must seek approval of the
members where the company loans them over £50,000 to meet expenditure （人际交往、年会） required in the course of
business.
Consequences of a breach of duty 违反义务的后果
Should any breach of duty (general or specific) occur the directors may be liable in the following ways: 董事承担以下责任
(a) Fined –failure to comply can be a criminal offence 罚金‐刑事犯罪
(b) Removed from office –for breach of their service contract 罢免董事资格‐行政的
(c) Indemnify the company –for any losses suffered as a result of breach of duty 补偿公司‐民事的
§PPT答案：√X√X√、Kim‐De Facto、Ger‐Shadow、B
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