1. Identification of the subject of the infringer
According to Article 147 of the "Company Law": "Directors, supervisors, and senior managers shall abide by laws, administrative regulations and the company's articles of association, and have the duty of loyalty and diligence to the company. Directors, supervisors and senior management personnel shall not use their power to accept bribes or other illegal income, and shall not embezzle the company's property. The meeting or the general meeting of shareholders agrees to use the convenience of their positions to seek business opportunities belonging to the company for themselves or others, and to operate or operate for others the same business as the company they work for. With this kind of status, it is difficult for ordinary employees of the company to use this case to defend their rights to harm the interests of the company.
2. Facts that damage the interests of the company, causality determination
The manifestations of damage to the interests of the company are mainly reflected in the following points: embezzling the company's finances (suspecting a crime if the circumstances are serious), carrying out the same business as the company or helping others to carry out (during tenure), Selling the company's trade secrets, making decisions in violation of company regulations and causing heavy losses, etc. The above manifestations all have absolute requirements on whether the infringer has failed to perform the duty of diligence subjectively. The duty of diligence of directors and executives is a positive obligation that directors must perform under the Company Law. The duty of diligence requires directors and executives of the company. When exercising their powers, they shall manage the company's business with due diligence, and directors and senior managers who violate this obligation shall bear corresponding legal liabilities.
In practice, there are disputes over how to judge that directors, supervisors, and senior executives have not fulfilled their duties of diligence. Although the Company Law stipulates that senior executives must perform their duties of loyalty and diligence, the expression is too general and simple, and it is difficult to obtain evidence in the identification of behavior.It is very important for the company to have a sound management system, and the management should leave traces. The management system text must leave the signature of directors, supervisors and senior executives, and the training and learning records. This has a strong constraint on the diligence of directors, supervisors and executives, and it is also an afterthought. Forensics reduce barriers.
3. Determination of the scope of compensation for damages to the interests of the company The income of the company shall belong to the company and shall be liable for compensation.
4. Jurisdiction
Disputes over liability for damage to the company's interests shall be under the jurisdiction of the people's court where the company is domiciled.
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