Unformatted text preview: Class 4 DIRECTORS’
RESPONSIBILITIES 1 Learning Objectives
1. Who can or cannot be a company director
2. The different types of directors
3. Director’s powers
4. Director’s duties
5. Director’s liabilities 2 Who can or cannot be a company
Simply, a director of a company is
an individual who is custodian of company resources
a strategic decision maker
a supervisor of company management.
Under the Corporations Act 2001, a director needs to be: an individual
over the age of 18 (s 201B(1)) 简单地说，⼀一个公司的董事就是
已向本公司签署同意(s201D(1))。 who has given his/her signed consent to the company
3 Who can or cannot be a company
•According to the legal definitions - • 根据法律律定义公司董事的定义如下: s9 s 9 a director of a company is defined as a person who:
(i) is appointed to the position of director or 获委任为董事或 (ii) is appointed to the position of an alternate director and is
acting in that capacity: regardless of the name that is given to
获委任为候补董事，并以该身份⾏行行事:不不论其职位的名称。 (iii) a person who is not appointed but they act in the position of
a director; or the directors of the company are accustomed to
act in accordance with their instructions or wishes.
未获委任但以董事身分⾏行行事的⼈人;或公司董事习惯于按照他们的指示或愿望⾏行行事。 •Under general law a director can include a person who, while
not formally appointed to the position of director, has knowingly
acted in the role of director.
根据⼀一般法律律，董事可以包括虽未被正式任命为董事，但已在知情情况下担任董事的⼈人。 4 Who can or cannot be a company
根据第206B条，任何⼈人如符合下列列情况，即⾃自动丧失资格: Under s 206B a person is automatically disqualified if he/she:
(b) Is convicted of an offence that concerns participation in making
decisions that affect the business of the corporation
是否因参与影响公司业务的决策⽽而被定罪 Is convicted of an offence that: 因下列列罪⾏行行被定罪:
(ii)涉及不不诚实⾏行行为，可被判⼊入狱最少三个⽉月 (i) is a contravention of this Act and is punishable by imprisonment
for a period greater than 12 months; or
(ii) involves dishonesty and is punishable by imprisonment for at
least three months
c) Is convicted of an offence against the law of a foreign country that
is punishable by imprisonment for a period greater than 12
被判犯有违反外国法律律的罪⾏行行，可判处监禁12个⽉月以上。 5 Who can or cannot be a company
Provisions relating to the disqualification of directors
obeing an undischarged bankrupt 取消资格
因使⽤用专⽤用集成电路路⽽而被取消管理理公司的资格。 obeing disqualified from managing a corporation based on
an application of ASIC.
A lack of business experience or professional or higher
educational qualifications do not appear to be a legal
constraint to act as a company director.
缺乏商业经验或专业或更更⾼高学历似乎并不不是担任公司董事的法律律约束。 6 The different types of directors
Executive directors are employed by senior management of
They have a dual role: 执⾏行行董事
监公司管理理。 part of day to day management and fulfilling the broader
role of custodian of company resources, strategic decision
to monitor company management.
The obvious potential conflict is that executive directors
have the task of monitoring their own performance.
显⽽而易易⻅见的潜在冲突是，执⾏行行董事的任务是监督⾃自⼰己的业绩。 7 The different types of directors
NON EXECUTIVE DIRECTORS
Non executive directors are not current employees of the company. They
are referred to as outside/independent directors.
⾮非执⾏行行董事不不是公司当前的雇员。他们被称为外部/独⽴立董事。 He/she may have been a former employee and there may be other
relationships that could make a non executive dependent on the
他/她可能曾是公司的⼀一名前雇员，也可能有其他关系使⾮非执⾏行行董事依赖于公司。 The optimal mix of directors on the board is a contentious issue.
董事会中董事的最佳组合是⼀一个有争议的问题。 Most Australian listed companies contain both executive and non
⼤大多数澳⼤大利利亚上市公司既有执⾏行行董事，也有⾮非执⾏行行董事。 The law does not distinguish between executive/non executive
Directors in terms of their responsibilities.
法律律对执⾏行行董事和⾮非执⾏行行董事的职责没有区别。 8 The different types of directors
Although independent directors are assumed to be a crucial
component of many company boards, the Corporations Act
2001 does not define what an independent director is.
both the ASX Corporate Governance Council (ASXCGC)
‘Principles and Recommendations and the Investment and
Financial Services Association (IFSA) Blue Book place
emphasis on the importance of independent directors.
澳⼤大利利亚证券交易易所公司治理理委员会(ASXCGC)的原则和建议以及投资与⾦金金融服务协会(IFSA)的蓝⽪皮书都强调了了独⽴立董事的重要性。 9 The different types of directors
MANAGING DIRECTOR – CHIEF EXECUTIVE OFFICER (CEO)
While the term ‘managing director’ is used in s198C, it is not defined.
The position and term ‘managing director’ is often used
interchangeably with the term ‘chief executive officer’ (CEO).
In Australia, it is extremely rare for the CEO not to be on the board of
The CEO has a crucial and difficult role to play on the board.
As well as being the most senior employee in the organisation and
accountable for all operational activities, the CEO has the same
stewardship, monitoring and strategic responsibilities as other board
作为组织中最资深的员⼯工和所有运营活动的负责⼈人，⾸首席执⾏行行官与其他董事⼀一样负有管理理、监督和战略略责任。 10 The different types of directors
Under s 201K, a director, (with the other directors’ approval) may
appoint an alternate director to exercise some or all of his or her
powers for a specified period. 根据第201K条，董事(经其他董事批准)可任命⼀一名候补董事，在指定期间部分或全部⾏行行使其权⼒力力 ASIC must be given notice of the appointment and termination of the
appointment of the alternate director (see s 205B (2) and (5)).
候补董事的委任及终⽌止委任必须通知证券及专业事务委员会(⻅见第205B(2)及(5)条)。 When the alternate director exercises director power it is as effective as
if it were exercised by the originally appointed director.
当候补董事⾏行行使董事权⼒力力时，其效⼒力力与原被任命董事⾏行行使的效⼒力力相同 The advantage of an alternate director: he/she provides continuity of
decision making when the originally appointed director is unable to
attend directors meetings.
候补董事的好处:当原先任命的董事不不能出席董事会议时，他/她提供了了决策的连续性。 11 The different types of directors
OTHER DIRECTOR CATEGORIES
Nominee Directors 其他董事类别 被提名的董事
由主要股东提名进⼊入公司董事会代表主要股东的利利益。 nominated to sit on a company board by a dominant shareholder to represent
the interests of the dominant shareholder.
Shadow Directors 影⼦子董事
即使未被正式任命为董事，但其指示将由公司董事会执⾏行行的⼈人。 a person whose instructions will be acted upon by the company’s board, even
though the person was not formally appointed as a director.
De facto Directors 事实上的董事
没有被正式任命为董事，但似乎做了了所有的任务，通常是与正式任命的董事 are not formally appointed as directors but appear to do all the tasks that
would normally be associated with formally appointed directors
Governing Directors 管理理董事
更更常⻅见于拥有重要权⼒力力的⾃自营公司，例例如对公司的全⾯面控制和管理理 are more common with proprietary companies, where they have significant
powers, e.g. total control and management of the company
12 The different types of directors
OTHER OFFICERS OF THE CORPORATION
The Company Secretary 公司其他管理理⼈人员 公司秘书 similar with director
公司秘书在加强公司治理理⽅方⾯面起着重要的作⽤用。 the company secretary is concerned with the administration of the company.
this encompasses the need to ensure that the company’s corporate
governance policies are properly structured & appropriately presented
the company secretary plays a significant role in enhancing the appearance
of corporate governance.
The Chair of the Board 董事会主席
⻅见《2001年年公司法》第248E条 a high profile position with significant responsibilities. However, the Corporations Act 2001 does not place a substantially greater
expectation on the role of the chair than any other director.
See s 248E of the Corporations Act 2001
13 Director’s powers
STATUTORY POWER OF DIRECTORS 董事的法定权⼒力力 s 198A – the board’s authority to manage the affairs of the company.
董事会管理理公司事务的权⼒力力。 s 198A - s 198A(2) - the directors may exercise ‘all the powers’ of the company,
with the exception being any powers that the Act or the company’s
constitution require the company to exercise in a general meeting of the
第198A(2)条-董事可⾏行行使公司的“所有权⼒力力”，但法律律或公司章程要求公司在公司股东⼤大会上⾏行行使的任何权⼒力力除外。 the directors also have both a common law and statutory right of access
to company documents.
董事还拥有普通法和法定的查阅公司⽂文件的权利利。 s 290 - a director of a company has the right of access to the financial
records of the company at all reasonable times.
公司董事有权在任何合理理时间查阅公司的财务纪录 s 290 - s198B - any two directors of the company, or the director of a
proprietary company that only has one director, may execute a
公司的任何两名董事，或只有⼀一名董事的独资公司的董事，均可签署票据。 14 Director’s powers (Cont’d)
DELEGATION OF POWER 代表团的权⼒力力 directors are entitled to delegate some of their responsibilities.
董事有权将部分责任委托他⼈人。 without the opportunity to delegate some of the responsibilities of the
board, the workload and effectiveness of the main board would be
如果没有机会将执⾏行行局的⼀一些职责委托给委员会，就会损害执⾏行行局的⼯工作量量和效率 s 198D (1) - to whom directors are able to delegate responsibility to
第198D(1)条-董事可以将责任委派给谁 the exercise of the power by a delegate is considered to be as effective
as if the director had exercised it in the first instance.
由代表⾏行行使的权⼒力力被认为与署⻓长在⼀一审中⾏行行使的权⼒力力⼀一样有效 s190 - the circumstances that responsibility may be absolved by the
署⻓长可免除责任的情况。 s190 - s 189 - a director is entitled to be able to rely on information provided
董事有权依赖他⼈人提供的信息。 s189 - 15 Director’s duties
GENERAL LAW DUTIES
REASONABLE SKILL AND CARE the common law principle of ‘reasonable skill and care’
applies to directors in carrying out their duties.
if directors breach the requirements to exercise reasonable
skill and care, and the company suffers losses, then it will be
found that the directors were negligent.
however, complication arises when determining fault in
specific circumstances. ⼀一般法律律职责合理理的技能和谨慎
然⽽而，在特定的情况下，当确定错误时，就会出现复杂性。 16 Director’s duties (Cont’d)
CONTRACTUAL OBLIGATIONS 合同义务
他们必须按照合同的要求履履⾏行行职责，同时运⽤用合理理的技能和谨慎。 Directors have a contractual relationship with the company they serve
they must perform their duties in accordance with the requirements of their
contracts, and in combination with 信托关系
the exercise of reasonable skill and care. FIDUCIARY RELATIONSHIP 在信托关系中，⼀一⽅方有权/有义务代表另⼀一⽅方⾏行行事。
4.董事有时与债权⼈人有信托关系 In a fiduciary relationship, one party has the authority/obligation to act on
behalf of another party.
The directors fiduciary relationship brings in at least four different themes:
1.the directors must ‘act in good faith’ in the best interests of the company and
2.directors must ‘exercise their powers for a proper purpose’
3.directors have a duty to ‘avoid conflicts of interests’
4.directors sometimes have a ‘fiduciary relationship with creditors’
17 Director’s duties (Cont’d)
STATUTORY DUTIES 法定职责 s 179 states; that other duties are imposed by other provisions of the Act
and other laws (including general law)
179 个国家;本法其他规定和其他法律律(包括普通法)规定的其他职责 s 180 (1) (a) Duty of care and diligence
s 180 (2) Business judgement rule 注意义务和勤勤勉勉义务 s 180 (1) (a) 商业判断规则 s180(2) s 181 Duty of good faith and to act for a proper purpose
诚实守信的义务和为正当的⽬目的⽽而⾏行行动 ss 182 and 183 Duty not to misuse position or information
第182及183条规定不不得滥⽤用职务或资料料 s 344 Duty relating to accounts and reports
s 588G Duty to prevent insolvent trading
18 有关会计及报告的职责 防⽌止资不不抵债的交易易 Director’s duties (Cont’d)
The financial report of a company refers to the company’s financial
income statement 财务报告
董事声明是董事对公司财务报告和偿债能⼒力力的正式声明。 cash flow statement
statement of changes in equity
notes to the financial statements
The directors declaration is a formal statement by the directors specifically
about the financial report and the solvency of the company.
19 Director’s duties (Cont’d)
The directors report should not be confused with the
The directors report contains more detail than the directors
declaration and will touch on a raft of issues that relate to
the company. (see s 299, 299(A) and 300, and 300(A))
The directors report consists of two sections – general and
董事报告⽐比董事声明包含更更多的细节，并将涉及⼤大量量与公司有关的问题。(⻅见s 299, 299(A)和300，和300(A))
董事报告分两部分:⼀一般报告及个别报告) 20 Director’s duties (Cont’d)
The general section focuses on:
a review of the years operations and results
details of any significant changes in the entities state of affairs
principal activities 总务部分的重点是:
对公司当前或未来财务期间的运营和业绩产⽣生或可能产⽣生重⼤大影响的任何重要和相关情况或事实的详细信息。 details of any material and relevant circumstances or fact that has or may
materially affect company operations and performance in current or future
The specific section focuses on:
dividends and distributions
individual director shareholdings
payments to board members
board policy. 具体章节的重点是:
股息和分配个别董事向董事会成员⽀支付的股份董事会政策。 21 Director’s duties (Cont’d)
AUDIT AND AUDIT REPORT
s 301- all companies except for small proprietary companies
must have their financial reports audited.
s 307- what an auditor must state in their report.
s 344(1) -director compliance requirements to financial
reporting and auditing obligations
s 344 (2) - penalties for non compliance to obligations
s 344(1) -财务报告和审计义务的董事合规要求
第344条(2)-不不遵守义务规定的处罚 22 Director’s duties (Cont’d)
DUTY RELATING TO CONTINUOUS DISCLOSURE ASX Listing Rule 3.1 requires that:
Once an entity is or becomes aware of any
information concerning it that a reasonable person
would expect to have a material effect on the price
or value of the entity’s securities, the entity must
immediately tell ASX that information.
⼀一旦⼀一个实体得知或得知任何有关该实体的信息，⽽而⼀一个理理性⼈人预期该信息将对该实体证券的价格或价值产⽣生重⼤大影响，该实体必须⽴立即将该信息告知ASX。 23 Director’s liabilities
GENERAL ISSUES ⼀一般问题 A director’s contractual arrangement is with the company, and not
董事的合同安排是与公司，⽽而不不是与个⼈人股东。 It is the company that is best placed to sue an individual director for
negligence, rather than individual shareholders.
起诉个别董事玩忽职守的最佳⼈人选是公司，⽽而不不是个别股东。 In the majority of occasions it will be the board of directors, on behalf of
the company, or the liquidator of an insolvent company that will
commence legal action against a director who has not acted
在⼤大多数情况下，代表公司的董事会或破产公司的清算⼈人将对⾏行行为不不当的董事采取法律律⾏行行动。 While directors can be potentially liable under both common law and
statute law, the obligations under statute law (primarily the
Corporations Act 2001) are very specifically address areas of alleged
《2001年年公司法》)规定的义务⾮非常具体地涉及董事不不当⾏行行为的指控领域。 24 Director’s liabilities (Cont’d)
The issue of criminal liability is very relevant for company directors.
director responsibility has expanded in major areas of law to include:
•occupational health and safety 刑事责任
•⼀一般刑法 •general criminal law
Additionally, there is a plethora of different criminal offences for which
penalties are prescribed under the Corporations Act 2001 for director
此外，根据《2001年年公司法》(公司法)，对董事不不当⾏行行为的处罚规定了了⼤大量量不不同的刑事犯罪。 25 ...
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