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  • 关于在上市公司建立独立董事制度的指导意见 Establishment of Independent Director Systems by Listed Companies Guiding Opinion

    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 corporate governance structures and promote the standardized 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 shareholders that could hinder his making independent and objective judgments.

      (2) An Independent Director has a fiduciary 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, conscientiously perform his duties and responsibilities, safeguard the company's overall interests and, in particular, pay attention that the lawful 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 entities or individuals that have a material interest in, the listed company. In principle, an Independent Director should not simultaneously 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 amend 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 certified 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, thereby 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 authorized 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 forth below:

      (1) having the qualifications to hold the position of Independent Director in a listed company in accordance with laws, administrative 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 specified 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 spouses, parents, children, etc.; and the term "major social relations" meaning siblings, parents-in-law, children-in-law, siblings' spouses, spouse's siblings, etc.);

      (2) natural person shareholders who directly or indirectly 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 determined by the CSRC.

      4. The Nomination, Election And Replacement 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 decided through election by the shareholders' general meeting.

      (2) The agreement of the nominee should be obtained before the nominator nominates him as Independent Director. The nominator should be fully aware of such details of the nominee as his occupation, educational background, title, career details, all of his concurrent 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 nominees 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 convened, 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 issua

    nce 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 implementation 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 expiration 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 consecutive 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 creditors must be drawn.

      If the resignation of an Independent Director causes the number of Independent Directors on the company's board of directors to fall below the m

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