关于在上市公司建立独立董事制度的指导意见

证监发[2001]102号
(Issued by the China Securities Regulatory Commission on 16 August 2001.)
颁布日期：20010816 　实施日期：20010816 　颁布单位：中国证券监督管理委员会

　　The following guiding opinions on the establishment of systems of independent outside directors (Independent Directors) by listed companies are put forward in order to further improve the corporate¹ governance structures and promote the standardized² operation of listed companies:

　　1. Listed Companies Should Establish Independent Director Systems

　　(1) The term "Independent Director of a listed company" means a director who does not hold any position in the company other than director and who has no relationship with the listed company engaging him or its principal shareholders³ that could hinder his making independent and objective judgments⁵.

　　(2) An Independent Director has a fiduciary⁶ obligation and an obligation of diligence toward the listed company and all its shareholders. An Independent Director should, pursuant to the requirements of the relevant laws and regulations, these Guiding Opinions and the company's articles of association, conscientiously⁷ perform his duties and responsibilities, safeguard the company's overall interests and, in particular, pay attention that the lawful⁸ rights and interests of small and medium shareholders are not prejudiced. An Independent Director should perform his duties and responsibilities independently, without the interference of the principal shareholders or the persons in actual control of, or other entities¹⁰ or individuals that have a material interest in, the listed company. In principle, an Independent Director should not simultaneously¹¹ hold the position of Independent Director in more than five listed companies and he should ensure that he has sufficient time and energy to effectively perform his duties and responsibilities as an Independent Director.

　　(3) Each listed company in China should amend¹² its articles of association and engage suitable persons as Independent Directors in accordance with the requirements hereof. At least one of the Independent Directors should be a professional accountant (the term "professional accountant" meaning a person with a senior title or qualifications as a certified¹³ public accountant). By 30 June 2002, at least two Independent Directors should be included among the members of the board of directors and by 30 June 2003, at least one-third of the members of the board of directors should be Independent Directors.

　　(4) If an Independent Director fails to meet the conditions of independence or another circumstance arises that makes it inappropriate for him to perform his duties and responsibilities as an Independent Director, thereby¹⁴ causing the failure of the listed company to meet the requirements hereof concerning the number of Independent Directors, the listed company should make up the number of Independent Directors in accordance with regulations.

　　(5) Independent Directors and persons intending to assume positions as Independent Directors should participate in training arranged by the China Securities Regulatory Commission (CSRC) and institutions authorized¹⁵ thereby in accordance with the requirements of the CSRC.

　　2. An Independent Director Should Have The Qualifications Required To Exercise His Functions And Powers As Such

　　A person holding the position of Independent Director should fulfil the basic conditions set forth¹⁶ below:

　　(1) having the qualifications to hold the position of Independent Director in a listed company in accordance with laws, administrative¹⁷ regulations and other relevant regulations;

　　(2) being independent as required herein;

　　(3) having a basic knowledge of the operation of listed companies and being familiar with related laws, administrative regulations and rules;

　　(4) having not less than five years' experience in the law or economics or other work experience required for performing the duties and responsibilities of an Independent Director; and

　　(5) meeting the other conditions specified¹⁸ in the company's articles of association.

　　3. Independent Directors Must Be Independent

　　The following persons may not hold the position of Independent Director:

　　(1) persons holding a position in the listed company or a subsidiary thereof and their lineal relatives and major social relations (the term "lineal relatives" meaning spouses¹⁹, parents, children, etc.; and the term "major social relations" meaning siblings²⁰, parents-in-law, children-in-law, siblings' spouses, spouse's siblings, etc.);

　　(2) natural person shareholders who directly or indirectly²¹ hold not less than 1% of the issued shares of the listed company or who rank in the top ten shareholders of the listed company, and their lineal relatives;

　　(3) persons who hold positions in entities that directly or indirectly hold not less than 5% of the issued shares of the listed company or that rank in the top five shareholders of the listed company, and their lineal relatives;

　　(4) persons who, at some time in the previous year, have fallen into one of the three categories listed above;

　　(5) persons who provide financial, legal, consultancy or other such services to the listed company or its subsidiaries;

　　(6) other persons specified in the company's articles of association;

　　(7) other persons determined²² by the CSRC.

　　4. The Nomination²³, Election And Replacement²⁴ Of Independent Directors Should Be Conducted In A Legal And Standardized Manner

　　(1) A listed company's board of directors, supervisory board and shareholders who individually or together hold not less than 1% of the shares in the listed company may nominate candidates for Independent Director. Such directors will be decided²⁵ through election by the shareholders' general meeting.

　　(2) The agreement of the nominee²⁶ should be obtained before the nominator nominates him as Independent Director. The nominator should be fully²⁷ aware of such details of the nominee as his occupation, educational background, title, career details, all of his concurrent²⁸ positions, etc. The nominator should express his opinions on the nominee's qualifications for holding the position of Independent Director and his independence. The nominee should make a public statement that no relationship exists between himself and the listed company that could affect his making independent and objective judgements.

　　The listed company's board of directors should make the afore-mentioned information public in accordance with regulations before the holding of the shareholders' general meeting at which the Independent Director is to be elected.

　　(3) The listed company should simultaneously submit the relevant materials on all the nominees²⁹ to the CSRC, the CSRC agency of the place where the company is located and the stock exchange where the company is listed before the holding of a shareholders' general meeting at which an Independent Director is to be elected. If the listed company's board of directors has objections concerning the relevant details of a nominee, the company should additionally submit the board of directors' written opinions.

　　The CSRC will examine and verify the qualifications for their posts and the independence of the Independent Directors within 15 working days. Nominees against whom the CSRC has objections may serve as candidates for company director but not as candidates for Independent Director.

　　At the time the shareholders' general meeting to elect an Independent Director is convened³⁰, the listed company's board of directors should elaborate on whether the CSRC had any objections against the candidates for Independent Director.

　　With respect to persons holding the position of Independent Director in listed companies before the issuance hereof, listed companies should submit the afore-mentioned materials to the CSRC, the CSRC agencies of the places where the companies are located and the stock exchanges where the companies are listed within one month of the issuance and implementation³¹ hereof.

　　(4) The term of office of Independent Directors will be the same as that of the other directors of the listed company. At the expiration³² of their terms, they may continue to serve if re-elected, but the additional time in office may not exceed six years.

　　(5) If an Independent Director fails to attend in person three consecutive³³ board meetings, the board of directors should invite the shareholders' general meeting to replace him.

　　An Independent Director may not be removed without cause before the expiration of his term, unless the afore-mentioned circumstance or a circumstance under which a person may not hold the position of director specified in the Company Law arises. If an Independent Director is removed before the expiration of his term, the listed company should disclose the same as a matter for special disclosure. If the dismissed Independent Director is of the opinion that the company's grounds for removing him are inappropriate, he may make a public statement to that effect.

　　(6) An Independent Director may submit his resignation before the expiration of his term. When an Independent Director resigns, he should submit a written resignation to the board of directors in which he provides information on any circumstances related to his resignation or any circumstances to which he believes the attention of the company's shareholders and creditors³⁴ must be drawn³⁵.

　　If the resignation of an Independent Director causes the number of Independent Directors on the company's board of directors to fall below the minimum ratio required herein, the written resignation of the said Independent Director should only enter into effect after his successor as Independent Director fills the vacancy³⁶.

　　5. Listed Companies Should Fully Exploit The Advantage Of Having Independent Directors

　　So that the advantage of having Independent Directors is fully exploited, in addition to the functions and powers granted directors under the Company Law and other relevant laws and regulations, listed companies should grant Independent Directors the following special functions and powers:

　　(1) major connected transactions (namely proposed connected transactions between the listed company and a connected person with a total value of more than Rmb3 million or more than 5% of the listed company's most recently audited³⁸ net asset value) should be submitted to the board of directors for deliberation after the approval of the Independent Directors;

　　1) before rendering³⁹ their judgment⁴, Independent Directors may engage an intermediary organization to issue an independent financial consultant⁴⁰ report for use as a basis for rendering their judgment;

　　2) proposing the engagement or dismissal of an accounting⁴¹ firm to the board of directors;

　　3) proposing to the board of directors the convening⁴² of an extraordinary shareholders' general meeting;

　　4) proposing the convening of a meeting of the board of directors;

　　5) independently engaging external auditing⁴³ institutions and consultancies; and

　　6) openly soliciting⁴⁴ shareholders' voting rights before the holding of a shareholders' general meeting;

　　(2) Independent Directors should obtain the consent of at least half of all the Independent Directors before exercising the afore-mentioned functions and powers.

　　(3) If any of the afore-mentioned proposals was not accepted or any of the afore-mentioned functions and powers could not be exercised normally, the listed company should disclose the details thereof.

　　(4) If a listed company establishes a remuneration committee, audit³⁷ committee, nomination committee or other such committees under the board of directors, Independent Directors should account for at least one-half of the members thereof.

　　6. Independent Directors Should Express Independent Opinions On Material Matters Of The Listed Company

　　(1) In addition to performing the duties and responsibilities mentioned above, an Independent Director should express his independent opinion to the board of directors or the shareholders' general meeting on the following matters:

　　1) the nomination, appointment and removal of directors;

　　2) the engagement or dismissal of senior management personnel;

　　3) the remuneration of the company's directors and senior management personnel;

　　4) existing or new loans totaling more than Rmb3 million or more than 5% of the listed company's most recently audited net asset value extended to the listed company by its shareholders, persons in actual control or affiliates⁴⁵ or other transactions involving funds amounting to more than Rmb3 million or more than 5% of the listed company's most recently audited net asset value between the listed company and its shareholders, persons in actual control or affiliates, and whether the company has taken effective measures to recover the monies owed;

　　5) matters that may, in an Independent Director's opinion, prejudice the rights and interests of small and medium shareholders; and

　　6) other matters specified in the company's articles of association.

　　(2) Concerning the afore-mentioned matters, an Independent Director should express one of the opinions set forth below:

　　(3) If the relevant matter is a matter requiring disclosure, the listed company should make a public announcement of the Independent Directors' opinions. If the Independent Directors fail to reach a consensus⁴⁶ in their opinions, the listed company should disclose each of the Independent Directors' respective opinions.

　　7. Listed Companies Should Provide The Necessary Conditions To Ensure That The Independent Directors Effectively Exercise Their Functions And Powers

　　(1) Listed companies should ensure that their Independent Directors enjoy the same right-to-know as other directors. For any matters that require the decision of the board of directors, listed companies must give Independent Directors prior notice by the statutory deadline and provide them sufficient information. If an Independent Director is of the opinion that the information provided is insufficient⁴⁷, he may ask for further information. If two or more Independent Directors are of the opinion that the information provided is insufficient or the arguments made are unclear they may jointly⁴⁸ propose to the board of directors in writing that the meeting of the board or the deliberations on the matter in question be postponed⁴⁹. The board of directors should accept such a proposal.

　　The information provided to an Independent Director by a listed company should be preserved by the listed company and the Independent Director himself for a period of at least five years.

　　(2) Listed companies should provide the working conditions necessary for their Independent Directors to perform their duties and responsibilities. The secretary of the board of directors of a listed company should actively⁵⁰ provide the assistance necessary for an Independent Director to perform his duties and responsibilities, e.g. explaining circumstances, providing materials, etc. The secretary of the board should carry out with the stock exchange in a timely manner the matters relating to the public announcement of those independent opinions, proposals and written statements provided by Independent Directors that should be publicly announced.

　　(3) When an Independent Director is exercising his functions and powers, the relevant personnel of the listed company should actively cooperate with him and may not refuse to do so, hinder him, conceal⁵¹ information from him or interfere⁹ with his independently exercising his functions and powers.

　　(4) The expenses incurred⁵² by Independent Directors when engaging intermediary organizations or required when otherwise exercising their functions and powers should be borne by the listed company.

　　(5) Listed companies should provide an appropriate allowance to their Independent Directors. The proposed rate for such allowance should be formulated⁵³ by the board of directors, deliberated and adopted by the shareholders' general meeting and disclosed in the company's annual report.

　　Independent Directors should not receive any extra, undisclosed benefits from the listed company, its principal shareholders or organizations or individuals with a material interest in the listed company other than the afore-mentioned allowance.

　　(6) Listed companies may establish necessary Independent Director liability insurance systems in order to mitigate⁵⁴ the risks that may arise in the normal performance by Independent Directors of their duties and responsibilities.