Mr. Koji Ishii as the new president of The Spa Strengthening the foundation from Gunma to J1 emissions Inauguration on the 1st of next month
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President Akahori will continue to be involved in the management of The Spa as a director even after he retires.
President Hiroshi Akabori retired from Thespakusatsu Gunma, which runs JXNUMX Thespakusatsu Gunma, at the end of this month, and he will replace him at FC Tokyo in JXNUMX. → Continue reading
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Director(Collecting) is allLtd.It is an institution that must be placed in.Company without Board of DirectorsInwardlyCompanyTo execute the business ofRepresentativeIs whatCompany with Board of DirectorsIs the decision-making body for business execution of the companyboard of directorsIs a member of.
2006/Of AprilCompany lawAs a result, the establishment of a board of directors is in principle voluntary, and the authority of directors differs depending on the institutional design, making it difficult to define uniquely.
- Company lawIn the following, only the title will be described.
Relations with stock companies are subject to delegation rules (330 article).
- Principle (Company without Board of Directors)
- As a general rule, each director has business execution rights and a company (348 article,349 article).
If there are multiple directors, the decision-making regarding business execution of the company should be made by the directors.majorityAll of them have representative rights. Articles of IncorporationOr by mutual election of directors based on the provisions of the Articles of IncorporationGeneral Meeting of ShareholdersA specific director by one of the resolutionsCEOThe directors other than the representative director do not have the representative right (Article 349 paragraph 1 proviso, paragraph 3).
- Companies with a board of directors (excluding companies with a nominating committee, etc.)
- Company with Board of DirectorsAs a member of the board of directors, the directors of the company participate in decision-making regarding the business of the company. The representative right of the company is held by the representative director and not by other directors. In addition, business execution rights areExecutive DirectorOnly the directors selected for363 article(1), other directors do not have.
- Company with Nominating Committee
- Company with Nominating CommitteeIn the above, a board of directors is established, and business execution is performed by executive officers, and directors do not have business execution rights. It is also not possible to arbitrarily assign business execution authority to a director and make him a business executive (415 article). Company representative rightsRepresentative Executive OfficerHas, and cannot set up a representative director (Article 349 paragraph 3). Therefore, the directors of a company with a nominating committee, etc. must participate in the decision-making regarding the business of the company as a member of the board of directors, and the committees they are in charge of as nominating committees, audit committees, and remuneration committees. Can only participate in the decision-making (however, double duty with executive officers is allowed).
- For companies with nominating committees, etc.Statutory AuditorThe Audit Committee is set up under the Board of Directors. In addition, the majority of the members of each committee, including the Audit Committee, must be outside directors (400 article).
- The directors of a company with a nominating committee, etc. are thus separated from the roles of company representative and business execution, but also have the role of monitoring and evaluating the business of the management team below the representative executive officer. It can be said that it is more external to the corporate organization and the shareholder's proxy character is stronger than the ordinary directors of a company.
- Special Director (373 article）
- 6 or more directors, 1 or more of whomOutside directorIn the case of a stock company, which is originally a resolution of the board of directors, the disposal and transfer of important assets and the large amount of debt (362 articleWith regard to item (4), item (1) and item (2)), a resolution can be made with the majority of the three or more directors selected in advance. This selected director is called a special director.
- oldLaw concerning special cases of commercial law concerning audits of corporations(Commercial Law Exception Law)Important Property CommitteeIs a system equivalent to.
Appointment, number of members, term of office, and dismissal
DirectorsGeneral Meeting of ShareholdersWill be appointed by (329 articleArticle 1, Article 254, paragraph 1 of the former Commercial Code). In appointmentquorumAsShareholderIf more than one-third or more than one-third of the voting rights of the Articles of Incorporation are stipulated in the Articles of Incorporation, the attendance of shareholders equal to or more than that proportion is required, and the majority of voting rights of the attending shareholders shall be decided. (341 article).
Number of members
If the number of members is insufficient, the officers who retired due to the expiration of their term of office or resignation will have rights and obligations until they are newly appointed or a temporary director takes office (346 article).
The oldCommercial lawSince it was obligatory to establish a board of directors, there were three or more people.
The term of office shall be until the conclusion of the Ordinary General Meeting of Shareholders regarding the last business year ending within two years after the election, and for companies with a nominating committee, etc., the Ordinary General Meeting of Shareholders shall be within one year after the election. It is possible to shorten the term of office by the articles of incorporation (332 articleItem 1 Item 4). Usually, he is reappointed after receiving approval at a general meeting of shareholders every two years. In addition, other than companies with committeesPrivate companyIn Article 10, the articles of incorporation may be extended within a period of 332 years (Article 2, paragraph XNUMX).
The dismissal can be done at any time by the ordinary resolution of the general meeting of shareholders (339 articleItem 1,341 article） [Note 1].. However, it is possible to stipulate it to exceed this by the Articles of Incorporation, and some companies stipulate that. If there is no justifiable reason for dismissal, the person may claim damages against the company (Article 339, paragraph 2).
If the number of officers stipulated by this Act or the Articles of Incorporation is lacking, the officers who retired due to the expiration of their term of office or resignation will continue to hold their rights as officers until the newly appointed officer becomes appointed. Have an obligation (Rights and obligations Director,346 articleItem 1).
If there are insufficient directors or the number of members stipulated in the Articles of Incorporation, the court may, when it finds it necessary, appoint a person who should perform the duties of a temporary director at the request of an interested party. it can(Temporary director, Article 346, paragraph 2).
Usually, directorsPresident,The president,Managing director,Managing directorThe title is given. However, these are not stipulated in the Commercial Code or the Corporate Law, but each company has uniquely added them. In this way, a director who is given a certain title is sometimes referred to as a director who has a title (Yakutuki Shiriyaku). (Of course, directors without titles are also known as "Hiratori". Hira's director's abbreviation). By bringing these positions and the power relationships they represent to the board of directors, there is a hierarchy between directors who should not have a hierarchical relationship and should be in a position to monitor each other's business, especially in auditing business. It often causes trouble.
- Officer (company)See also
Duties and responsibilities
As a general rule, a director is an institution of the company and has the authority to execute the business of the company. This is due to the enactment of the Companies Act1950/(Showa(25 years) It became the same as the Commercial Code before the revision. However, in a company with a board of directors, directors do not have business execution authority unless they are appointed as representative directors, and are merely members of the board of directors. This is similar to the provisions of the Commercial Code since 1950.
Under the Commercial Code after the 25 revision, the board of directors became the institution of the company, and directors were not members of the board of directors alone and became members of the board of directors. In the same amendment, the system of restricting the qualification to become a director to the shareholders of the company was prohibited (former Article 254, Paragraph 2 of the Commercial Code). This shows that directors are not just representatives of shareholders' interests, they are socially responsible. However, shareholders can be directors, and in reality, most SMEs are shareholders. As a member of the Board of Directors, directors make business decisions and execute assigned business. In particular, the directors who have been given business execution rightsExecutive DirectorThe director who has been given representative rightsCEOSay. These are legal, and the latter must be installed, butCorporate OfficerIn some cases, the company may adopt its own system to grant authority.
Prohibition of profit provision regarding exercise of shareholders' rights
- When a stock company provides a profit on property, the directors involved in providing the profit must jointly and jointly pay an amount equivalent to the value of the profit provided. Bear However, any person other than the director who provided the profit shall be exempted from duty if he/she proves that he/she did not neglect to perform his/her duties.Article 120 paragraph 4).
Obligation to the company
- The relationship between directors and the companyDelegationTherefore, when a director performs its duties as a member of the board of directors and as a representative director,Duty of caution(330 articleByCivil Code Article 644Mutatis mutandis) andFidelity obligationBear (355 article). The duty of due care of a prudent manager depends on the size of the company and the industry.
- As embodying the duty of loyalty,Duty to avoid competition(356 articleItem 1 No. 1),Conflict of interest transactionsRestrictions (Article 356, Paragraph 1, Item 2)) Is specified.
- When it is discovered that a stock company has a fact that may cause significant damage, the fact must be immediately reported to the shareholders or corporate auditors (357 article).
Liability to the company
- Octopus dividend(While there is no distributable amount (dividendable profit),Profit dividendTo other directors, lending money to other directors, conflict of interest transactions, andArticles of IncorporationIn the event of damage to the company due to an act that violates462 article, Article 266 of the former Commercial Code).
- If you neglect your duties, you will be liable for damages (423 article) Is exempted with the consent of all shareholders (424 article).
- When a director or executive officer conducts a transaction in violation of the rules of competition, the amount of profit obtained by the director, executive officer or a third party through the transaction is estimated to be the amount of damage set forth in the preceding paragraph (Article 423, 2). Section).
- Regarding the responsibility, the company with statutory auditors or the company with committees shall explain the details of the fact that caused the liability and the execution of duties of the relevant officer, etc. If it is deemed necessary in consideration of the situation and other circumstances, the Articles of Incorporation shall stipulate that exemption can be made with the consent of the majority of the directors excluding the directors in charge of the liability, up to the amount exempted from the law. Can be (426 article).
- The responsibility of the director who made the transaction for himself is non-negligible, and cannot be exempted because the failure to perform the duties is due to the reason that he cannot blame the director (428 article).
Liability for third parties
- In the event of executing the business of the company, even if the third party is damaged intentionally or due to gross negligence (serious negligence), the responsibility to compensate it will ariseArticle 429 paragraph 1, Article 266-3 of the former Commercial Code (1)). The judicial precedent acknowledges this responsibility to protect a third party, and weighs it more than general liability (Minshu 44, No. 11, No. 26, 23, November 11, 2150).
- Directors are required to monitor other directors. In the old Commercial Code, this obligation was considered to be imposed because the board of directors was the supervisory body for business execution, and the directors were members of it. However, as a general rule, the Board of Directors is not established in the Corporate Law, so other legal bases such as the duty of loyalty of directors are required.
Injunction of director action by shareholders
- A shareholder of a privately held company shall, when a director conducts an act outside the scope of the purpose of the stock corporation or otherwise in violation of laws or regulations or the Articles of Incorporation,Significant damageIf there is a risk of the occurrence of the above, the Director may be requested to stop the act (360 article(1 and 2).
- Shareholders who continue to hold shares for 6 months in a public company, in the event that a director conducts an act that is outside the scope of the purpose of the stock corporation or otherwise violates laws or the Articles of Incorporation, To the stock companyDamage that cannot be recoveredIf there is a risk of the occurrence of such an act, the Director may be requested to cease the act (paragraph 3 of the same Article).
In the case of disputing the resolution of the election of directors or filing a lawsuit to dismiss a director,JudgmentIn the meantime, to suspend the execution of duties by the director,Provisional disposalCan file a claim. At that time, if there is no person who performs the duties of the directors on behalf of them, it is also possible to request provisional disposition of the appointment of the substitute director duties.
As a general rule, the authority of the company acting as a substitute for this temporary disposition isManaging directorActs that remain within the scope ofGeneral Meeting of Shareholders(For convocation of), special provisions of provisional disposition orders or individual approval of the court is required.
- Authority of a person acting on behalf of a director (352 article）
- Civil Protection Law Article 56Stipulate inProvisional disposalA person appointed on behalf of a director or representative director appointed by order must obtain the permission of the court to perform any act that does not belong to the managing director of the stock company, unless the provisional disposition order provides otherwise. ..
For companies without committees
Director'sRemuneration, The amount and calculation method are determined by the articles of incorporation or a resolution of the general meeting of shareholders (361 article, 269 of the former Commercial Code). Originally, the determination of remuneration is an act of a nature belonging to business execution, and therefore the board of directors may have the authority. However, it is said that this is done because there is a risk of receiving excessive rewards if you decide your own rewards (it is said to be "preventing sickness"). In addition, since the right to appoint directors lies at the general meeting of shareholders, it is natural that the final right to make decisions on remuneration can also be involved in the general meeting of shareholders.
In addition, under the Companies Act, “compensation for rewards, bonuses, and other duties” is stated in a clear statement.BonusIt was stipulated that is included in rewards. Under the old law, bonuses have been treated as a profit appropriation plan in practice, but now that the profit appropriation plan has been abolished, it will be included in compensation. Therefore, it can be said that this is one of the important revisions in practice because the accounting and tax treatments are significantly different. Although the treatment under the old law was not approved in the clear,Meiji EraIt has been customarily practiced since then, and it seems that it was based on the text as "fair null accounting practice" (former Article 32, paragraph 2 of the Commercial Code).
If there are several directors, it is said that the total amount of remuneration should be disclosed without disclosing individual remuneration amounts from the viewpoint that the purpose of preventing sickness should be satisfied (judicial precedent). However, there is an objection that individual amounts should be disclosed in order to promote transparency in corporate management (disclosure) rather than the personal sentiment of directors.
In the case of a company with a nominating committee, etc.
The details of individual compensation for directors are as follows:Compensation CommitteeDetermined by (Article 404 paragraph 3). The Compensation Committee, where the majority of the members are outside directors (Article 400 paragraph 3) Decides the reward, etc., so that the sickness is prevented.
Name containing the words of the director
- Executive Director
- Senior Managing Director
- Managing Director
- Outside director
- Substitute director
- Special Director
- Temporary director(Temporary Director)
- Board member
- Representative Director
- Rights and obligations Director
- Directors who have retired due to the expiration of their term of office or resignation, but who still have the rights and obligations as an officer until a new officer is appointed (346 article).
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- ^ The former Commercial Code required a special resolution at the General Meeting of Shareholders (former Commercial Article 343. Approval of more than two-thirds of voting rights) at the general meeting of shareholders.