公司并购中董事忠实义务辨析

    As a check against director’s abuse of power, the duty of loyalty serves as an important corporate governance mechanism. Directors, as the internal organ in charge of corporate management, owe duty to the corporation to avoid their conducts giving rise to damage to the corporation while operating. Directors should put the benefits of corporation first is the most important thing. If the conflicts of self-interest and corporate benefits occur, the law should create some rules to avoid directors from sacrificing corporate benefits. Since the Merger & Acquisition are one form of corporation’s operations, in which, the duty of loyalty is applicable thereof. Hence, it is essential to corporate jurisprudence to make good utilization of duty of loyalty of directors. To accomplish such a goal, the starting point is to gain full acquaintance of the duty of loyalty in the United States. In this thesis, using the method of comparative study and drawing advanced experience of the United States, the author aims to explore the concept of the duty of loyalty of directors in the M&A academically and to explore the improvement of the legislation system of the directors’duty of loyalty in M&A in China practically. Aside from the introduction, this thesis is divided into three chapters. The contents of each chapter are as followed:Chapter I, started from the classical cases of China and the United States, mainly focuses on the basic issues of the duty of loyalty of directors in M&A which contains the need for duty of loyalty of directors existing in the M&A and the definition of the M&A. In this chapter, the classical cases are the Weinberger v.UOP, Inc and the MBO for Yantai ChangYu Pioneer Wine Company Limited.The second chapter is theoretical analysis to the duty of loyalty of directors in the M&A. Since the M&A are one form of corporation’s operations, it is essential to understand the general content of directors’duty of loyalty in the M&A. However, the M&A involve fundamental changes to the corporation, and it’s not enough to protect the corporation if solely depending on general duty of loyalty. It’s necessary to conduct a comprehensive research of duty of loyalty and to create enhanced standards corresponding to the unique of the M&A. As to the duty of loyalty, we should focus on the present mechanisms which deal with conflicts of interest and protections to the shareholders. It would be more proper to look upon participations of conflicts-of-interest directors from allocating burden of proof and applying different standard of the judicial scrutiny. In this thesis, we should make further research to the duty of loyalty of directors in the M&A.Chapter III, legislative perfection to the duty of loyalty of directors in the M&A is the focus of this thesis. Through the analysis to the cases, based on our country’s current legislation system and practice, this thesis makes detailed comments and recommendations in relation to the building and perfecting our country’s legal system to the duty of loyalty of directors in the M&A.