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Chapter 1 Origin and Development of Independent Director System in US1

Introduction1

1．Background of initiating independent director system in US2

1.1 From shareholder dominance to board of director dominance2

1.2 From board of director dominance to managerial dominance5

2．Expected function of independent director system in US7

3．Adoption of independent director system in US8

3.1 Regulatory rules'influence8

3.2 Institutional shareholder activism12

3.3 ALI Corporate Governance Project14

3.4 Market participants'internal incentive14

4．Effectiveness of independent director system in US18

4.1 Positive views on effectiveness of independent director system18

4.2 Negative views on effectiveness of independent director system19

4.3 Other mechanisms'monitoring20

5．Corporate scandals：failure of gatekeepers in corporate governance21

5.1 Case of Enron's collapse22

5.2 Case of Adelphia Communications23

5.3 Case of Tyco International24

5.4 Case of Global Crossing Ltd．24

5.5 Case of World Com's bankruptcy24

6．New rules after the ENRON collapse25

6.1 Sarbanes-Oxley Act of 200225

6.2 New Stock Exchange Rules：NYSE（the New York Stock Exchange）and NASD（the National Association of Securities Dealers）26

Summary28

Chapter 2 Adoption of Independent Director System in China32

Introduction32

1．Shareholding structure in Chinese listed corporations33

1.1 Transformation from State-owned enterprises to modern corporations33

1.2 Shareholding structure in Chinese listed corporations38

2．Motivation of introducing independent director system in China40

2.1 Invalidity of board of supervisors40

2.2 Exploitation of small shareholders by large shareholders43

2.3 Influence from government46

3．Expected role of independent director system in China48

4．Regulations of independent director system in China50

4.1 Process of introducing independent director system into China50

4.2 Substantial rules of independent director system in China55

5．Differences in rules regarding independent director system between China and the US63

5.1 Different expected roles64

5.2 Different requirements on proportion65

5.3 Different definition of independence66

5.4 Different requirement on committee structure67

5.5 Different requirement on nomination69

5.6 Necessity to reconcile independent director and board of supervisors69

Summary70

Chapter 3 Actual Effect of Independent Director System in China73

Introduction73

1．Appointment of independent directors in China74

2．Nomination of independent directors in China77

3．Composition of independent directors in China78

4．Participation of independent directors in China80

5．Working environment of independent directors in China83

6．Replacement of independent directors in China85

7．Link between independent directors and corporate performance86

8．Two cases about independent directors in China87

Summary94

Chapter 4 Inherent Weaknesses of Independent Director System98

Introduction98

1．Rationale in independent director system99

2．Competence problem in independent director system100

2.1 Delimitation of“independence”100

2.2 Capacity and nomination of independent director109

2.3 Tenure and proportion of independent director114

3．Incentive problem in independent director system117

3.1 Compensation of independent director117

3.2 Duties and liabilities of independent director138

3.3 Concern for reputation154

Summary154

Chapter 5 Board of Supervision vs.Independent Director System160

Introduction160

1．Analysis of Board of Supervision in Germany160

1.1 Arrangement of Board of Supervision in Germany160

1.2 Analysis of Board of Supervision161

1.3 Marked traits of board of supervision in Germany168

2．Appraisal of Board of Supervision in Germany170

2.1 The merits of board of supervision170

2.2 The weakness of board of supervision174

3．Comparison between the two internal monitoring systems in Germany and US181

3.1 Structural differences in the two internal monitoring systems181

3.2 Endogenetic differences derived from the local forces183

3.3 Special concerns on efficiency of internal control187

4．Trend of functional convergence190

4.1 Evidence of convergence from American side191

4.2 Evidence of convergence from German side193

Summary197

Chapter 6 Coexistence of Two Internal Monitoring Systems in One Company200

Introduction200

1．Different opinions on the coexistence of two internal monitors201

2．Arguments for supporting coexistence of two internal monitors202

3．Coexistence causes conflicts in regulation205

3.1 Overlapped powers and duties between board of supervisors and independent directors under Chinese regulations205

3.2 Conflicting legal status of independent director system and board of supervisors209

4．Coexistence causes conflicts in practice212

4.1 Overlapped role of independent director system and board of supervisors in practical view212

4.2 Functional similarity between independent director system and board of supervisors213

4.3 Criticism on certain proposals218

4.4 Competition for power on oversight221

4.5 Weakening of actual effect on oversight222

4.6 Free-riding problem222

4.7 Increased cost for the company224

4.8 Cost and benefit analysis224

Summary227

Chapter 7 Mandatory approach or Optional approach229

Introduction229

1．Different approaches to implementing independent director system230

1.1 Mandatory approach230

1.2 Recommendatory approach231

1.3 Optional approach—a hybrid solution234

2．Government regulation theory and market-oriented theory235

2.1 Government regulation theory236

2.2 Contractual or market-oriented theory238

3．Appraisal of mandatory approach240

3.1 The values of mandatory approach240

3.2 Problems with mandatory approach242

4．Appraisal of recommendatory approach248

4.1 Advantages of recommendatory approach248

4.2 Disadvantages of recommendatory approach249

5．Evidence from Japanese experience251

5.1 Amendment of Japanese Commercial Code in 2002251

5.2 Actual effect ofthe amendment in 2002257

5.3 Indications from Japanese experience270

6．Values of optional approach273

6.1 Overcome the detriments of mandatory approach273

6.2 Overcome the detriments of recommendatory approach274

6.3 Provide competition among corporate governance rules275

Summary276

Chapter 8 Which Approach is Suitable for China278

Introduction278

1．Chinese market needs governmental intervention278

1.1 Lack of mature free market in China278

1.2 Special concern on protecting minority shareholders280

2．Improper to mandate independent director system in China281

2.1 Inherent problems in the independent director system281

2.2 Problems with“transplant effect”281

2.3 Doubts on best practice debate287

2.4 Weakness of mandatory rules289

2.5 A one-size-fits-all approach is both costly and unnecessary290

3．Suitable and feasible for China to make independent director system optional292

3.1 Wasteful to abandon the independent director system in China293

3.2 Improper to mandate the coexistence of independent director system and supervisory board system in one company298

3.3 Feasible to make independent director system optional300

Conclusion305

Bibliography312