董事会结构性偏见的心理学机理及问责路径

董事会结构性偏见的心理学机理及问责路径

Psychological Mechanism of Board Structural Bias and Its Accountability Path

    期刊名称：《法学研究》
    期刊年份：
    作者：朱羿锟
    单位：暨南大学法学院
    中文关键词：结构性偏见;董董相护;心理学解释;行为经济学解释;诚信义务
    英文关键词：structural bias;directors’mutual shield;psychological interpretation;behavioral economical interpretation;duty of good faith
    中文摘要：
    董事决策受到理性与情感的双重影响。董事可能因互惠、群体思维和群体偏好而无意识地“董董相护”，大脑在单纯接触效应、框定效应、群体共同行动以及恐惧性反应下的认知偏差和生物本能也可能自发地“董董相护”。对于这种结构性偏见的问责，理性范式下的忠实路径过于苛刻，注意路径又过于尊重，亦步亦趋地与其相挂钩的中间审查标准亦无能为力。诚信路径契合了结构性偏见下董事问责的制度需求，通过对董事决策实施合理性审查，填补问责空隙，增强对这一中间地带问责的有效性。
    英文摘要：
    The director is not merely a rational “economic person”. His decision is the mixture of rationality and emotion. It’s natural and known that they may practise favoritism in making corporate decisions in case of interest conflict. However, even there is no such interest conflict, they may still fail to stick to the supremacy of corporate interest and stockholders’ interest in decisions involving their fellow directors and executives. Instead they may unconsciously follow the trail of acquaintanceship, affection and face, and put their colleagues’ interests before the interests of the corporation and stockholders. This is the structural bias of the board, also known as the board “decision disease”, which has been ignored by the rationality decision paradigm so far. In order to expound the anomaly of the “directors’ mutual shield”, we must overcome the defects of traditional corporation law in its complacency and conservation as well as its ignorance of emotional influence in director decision-making process, and borrow a lessen from such emerging disciplines as behavioral economics and social psychology in absorbing their research outputs and analytic tools so as to open the black box of director’s decision flowing from emotion. According to social psychology, directors may unconsciously shield their fellow directors and executives due to situational issues like reciprocity, group favoritism and group thinking. The behavioral economics further reveals that they may do so unconsciously due to intrinsic reaction upon mere exposure effect, framing effect, ticking together and terrified effect, which expounds its formation mechanism from the aspect of brain’s working process. Obviously, such structural bias belongs to improper board behavior which may become more dangerous to some degree due to its concealment and fraudulency. How to make it accountable? The problem is that the loyalty path under the rationality paradigm is too harsh, and the care path is too deferential. The intermediate review standards dancing to their tunes are also helpless. The good faith path may meet the institutional demands of the director’s accountability under structural bias. The examination of the substantive reasonableness of director’s decision may urge them to look before leap, so the accountability gap may be filled up and the effectiveness of accountability in such intermediate areas may be strengthened.
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