Coordination Path of Fiduciary Duty and Representative Duty of Employee Directors under Dual Identity

Abstract

The employee director system aims to balance employees' rights and interests with corporate interests through employee directors' participation in board decision-making. However, in practice, this system often faces the predicament of functional emptiness and insufficient effectiveness. The reason lies in that under the dual identity of employee directors, their fiduciary duty and representative duty are inevitably in conflict, but there is a lack of corresponding coordination systems, making it difficult for employee directors to perform their duties in accordance with the original intention of the system. Focusing on two major issues-how to choose when fiduciary duty and representative duty conflict, and how to handle situations where the performance of special representative duty leads to a breach of general fiduciary duty-this paper proposes to divide the gradient of duties, construct differentiated liability standards, establish a sound supporting mechanism for the performance of duties, optimize judicial adjudication, and establish rules such as the "Dual Rationality Test", thereby constructing a coordination path for the fiduciary duty and representative duty of employee directors.