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随着中德经济合作的迅猛发展,双边投资持续增长。2007年到2010年期间,中国对德直接投资增长了87%,达8.29亿欧元。德国对中国的投资在2014年也达到了近390亿欧元,目前在华德国公司超过5000家。然而,大多数在德国收购或新建企业的中国企业家并不清楚他们在德国应当履行怎样的合规义务并承担怎样的合规责任,以及如何在法律框架内合理合法组织和经营企业,而这反过来对投资的可持续性发展又有着重大影响。近年来,不少德国企业在中国也频频遭遇合规丑闻,如2007年西门子、2010年戴姆勒及2013年拜耳。这表明,中国的合规体系对德国投资者而言亦是不甚明晰,尽管这些德国企业已有较长的在华经营历史。对两国公司管理机构及其人员合规义务的系统介绍,以及对责任和法律执行的细致分析是中德两国企业所急需的。金融危机爆发后,掀起了对现有管理机构及其人员合规义务与责任的激烈批判,将其视为导致企业经营不善的罪魁祸首。本文将对两种截然不同文化和法律制度下公司管理机构及其人员的合规义务与合规责任做比较和分析。需要说明的是德国法中的管理机构(Verwaltungsorgan),即董事会、监事会和高级管理人员,和其成员负有合规义务,为方便法律比较,故本文所述管理机构包括董事会、监事会和高级管理人员。
With the rapid development of Sino-German economic cooperation, bilateral investment has continued to grow. Between 2007 and 2010, China’s direct investment in Germany increased by 87% to reach 829 million euros. Germany’s investment in China also reached nearly 39 billion euros in 2014, and there are now more than 5,000 German companies in China. However, most Chinese entrepreneurs acquiring or establishing new businesses in Germany do not know exactly what kind of compliance obligations they should perform in Germany and what kind of compliance responsibilities they undertake, and how they can be reasonably and legally organized and run within the legal framework. In turn, it has a significant impact on the sustainable development of investment. In recent years, many German companies have frequently encountered compliance scandals in China, such as Siemens 2007, Daimler 2010 and Bayer 2013. This shows that China’s compliance system is also not very clear to German investors, though these German companies have a long history of operating in China. The systematic introduction of the compliance obligations of the regulatory agencies and their personnel in the two countries, as well as the careful analysis of responsibility and law enforcement, are urgently needed by enterprises in Germany and China. After the outbreak of the financial crisis, fierce criticism of the compliance obligations and responsibilities of the existing regulatory agencies and their personnel was set off as a culprit in the poor management of the enterprises. This article compares and analyzes the compliance obligations and compliance obligations of corporate governance agencies and their personnel under two distinct cultural and legal systems. It should be noted that the German-French regulatory agencies (Verwaltungsorgan), that is, the board of directors, board of supervisors and senior management personnel, and their members have compliance obligations, in order to facilitate the legal comparison, so the management bodies described in this article include the board of directors, board of supervisors and senior management personnel.