摘要： 职工董事制度是我国公司治理机制的重要构成,但在实践中常被“虚置化”而未能发挥应有作用,关键原因在于缺乏与职工董事双重身份相符的董事信义义务制度。传统公司法上的董事信义义务以公司利益为唯一导向,使职工董事与非职工董事奉行同样的信义义务,在职工利益与公司利益发生冲突时应维护公司利益,这实际上使职工董事徒有“职工”之名而只有“董事”之实。职工董事的信义义务具有双重结构,既应对公司履行忠实义务和勤勉义务,也应对职工履行忠实义务和勤勉义务。职工董事作为董事会成员中的“职工代表”,具有公司法上的职工利益代表效力,其维护职工利益时,不能仅行使反映意见、提出建议的“软职权”,还应行使代表职工利益表决的“硬职权”。为实现职工董事信义义务双重结构的协调实现,应建构合理的职工董事表决权行使规则,分设按职代会指示投票和自主投票的情形与要求,并建构“职事判断规则”作为职工董事勤勉尽责的判断方法。

关键词: 职工董事, 董事信义义务, 公司治理结构, 职工利益, 企业民主管理

Abstract: The employee director system is a crucial component of corporate governance mechanisms in China, but in practice, it is often “hollowed out” and fails to perform its intended role.The key reason lies in the absence of a fiduciary duty framework that aligns with the dual identity of employee directors.Traditional corporate law mandates that directors' fiduciary duties are solely oriented toward corporate interests, requiring employee directors to adhere to the same fiduciary duties as ordinary directors.When employee interests conflict with corporate interests, they are expected to prioritize corporate interests.This effectively renders employee directors nominally “employees” but substantively only “directors.” The fiduciary duties of employee directors have a dual structure: they should fulfill duties of loyalty and diligence not only to the company but also to the employees.As “employee representatives” among board members, employee directors possess the legal effect of representing employee interests under the Company Law.When safeguarding employee interests, they should not only exercise “soft powers” such as voicing opinions and making suggestions but also exercise “hard powers” by voting to represent employee interests.To achieve coordinated realization of the dual structure of fiduciary duties of employee directors, reasonable rules for the exercise of their voting rights should be established, distinguishing between situations where they vote according to instructions from the employee representative assembly and where they vote autonomously.Additionally, a “Duty Judgment Rule for Employee Directors” should be constructed as a method for assessing their diligence and responsibility.

Key words: Employee Directors, Fiduciary Duty of Directors, Corporate Governance Structure, Employee Interests, Democratic Management of Enterprises