Theoretical Justification and Application Suggestions for Directors’ Liability to Third Parties

新《公司法》第191条首次以独立法条的形式明确了董事对第三人的责任，对理论上和实践上均具有重大意义。学界从理论基础到实践需要，再到性质和构成要件均进行了充分的讨论，基于实践需要的思想碰撞能够得出未来的优化方向和建议：方式一设置董事担责的容错空间，包括为董事担责的数额设置上限、为董事担责设置责任减免机制、为董事设置责任保险机制；方式二构建董事担责的差异化机制，充分考量董事在履职过程中面临的具体情况、过错程度、职务和知识水平、损害结果等，避免过分苛责董事；方式三明确不担责为原则，担责为例外的理念，在保障第三人合法权益的同时，维护董事履职的积极性和稳定性，确保公司治理的高效运行。Article 191 of the new “Company Law”, for the first time, explicitly stipulates the liability of directors to third parties in the form of an independent legal provision, which is of great significance both theoretically and practically. The academic community has conducted thorough discussions on this issue, ranging from theoretical foundations to practical needs, as well as the nature and constituent elements. The ideological collisions based on practical needs can lead to future optimization directions and suggestions. Method one is to set a tolerance space for directors’ liability, including setting an upper limit on the amount of liability, establishing a liability reduction mechanism, and setting up a liability insurance mechanism for directors. Method two is to construct a differentiated liability mechanism for directors, fully considering the specific circumstances, degree of fault, position, and knowledge level of directors during their performance of duties, as well as the damage results, to avoid overly harsh treatment of directors; Method three is to clarify the principle that non-liability is the norm and liability is the exception, ensuring the protection of the legitimate rights and interests of third parties while maintaining the enthusiasm and stability of directors in performing their duties and ensuring the efficient operation of corporate governance.