6

Principles or rules-based codes of CG 原则和规则导向的治理

CG structures can be voluntarily complied w/ & any departures from best practice can be explained in the notes to the accounts. The main benefit of this ‘principles based’ approach is that full compliance is often difficult for companies in specific situations or in special circumstances. ‘Rules-based’compliance is a ‘one size fits all’ (box ticking) approach where full compliance is required by law & where departures can entail legal sanctions. This approach, such as SOX in US, is felt to be more effectiv ebecause it doesn't rely as heavily on the integrity of the BOD to interpret & comply or explain openly & objectively. 公司治理信息可自愿披露，如有和最佳范例的差异，则需解释。原则导向和规则导向治理对比-传统内容，不做翻译，考试需关注！（提醒：规则导向看起来更有效，因为更相信规则而不是管理层。。。）

CG is based on voluntary control in many countries, like UK & is often a requirement for stock exchange listing. It is based on the adoption of specific sub-committees & structures w/ clear recommendations relating to sound internal fin & operational controls & the promotion of high quality fin info to strengthen the accountability of BOD to their SHs. 公司治理在很多国家（如英国）是自愿型机制，并作为上市要求一部分；主要包括职能委员会设置，财报和运营控制，向股东提交高质财务信息来加强BOD的受托责任。

Cadbury Code (1992) was designed to concentrate on the essential IC mechanisms to support this need for greater transparency &accountability to SHs, which at the time was felt to be deficient. This voluntary report highlighted the ways in which companies could better underpin a company’s legal & regulatory obligations to its SHs through accountability & control, viewing the role of NED as being critical from an independence perspective. 1992年Cadbury code提出用内控机制来加强透明度和受托责任；独立的NED角色至关重要。

The recommendations of Cadbury Report emphasized higher CG stds thru improvements in the quality of fin reporting. This aspect has also been supported by accounting stds bodies, striving to provide more consistency, relevance & understandability in the accounting process. Cadbury report & others were eventually enforced as listing rules on many stock exchanges. Cadbury建议得到会计协会支持，他们致力于提高会计工作的一致性，相关性和可理解性，并一道成为很多证券交易所的上市要求。

Cadbury Report recommended that external auditing should be more independent & closely monitored thru the introduction of Audit committees composed of a minimum number of NEDs. However, where CG was to have most impact was thru the introduction of robust IC mechanisms & a system of internal audit where the design & control of processes & continuous monitoring of transactions & decision-making can help safeguard assets & prevent& detect anti-SKH behavior in the org. The IC concept was to be based on promoting continuous vigilance by mgt in preventing fin loss thru fraud, error, inefficiency or incompetence. Cadbury报告建议由NED组成的审计委员会监控外审工作保障独立性；然而影响更大的还是引入健全的内控和内审体系来设计和监控交易和决策过程，从而保护公司资产和预防以及检测组织内的不当行为。管理层需要倡导持续警惕的理念来预防因舞弊/错误/低效或无能导致的财务损失，来实施内控（译者注：参考COSO框架）

There are many CG codes focusing on matters incl. BOD roles & constitution. These include various recommendations on the procedures to appoint directors, the qualifications of directors, the proportion & independence & effectiveness of NEDs & diversity & on the need for additional & independent board committees (Audit, Nomination, Risk, Remuneration). Indeed many corp scandals (pre-Enron) tended to revolve around inappropriate or unjustified pay increases or bonuses for executives, seemingly regardless of performance, leading to so called ‘fat cat’ scandals. Both Greenbury Report & Hampel Report focused on directors' remuneration, rather than upon broader & more significant fin, performance or governance issues, because it was seen as being such a problem.世界上有不同公司治理版本，一般关注BOD职责和构成，董事资质和任命，NED比例，独立性和有效性，董事多样化以及四大职能委员会等。安然事件前，不少公司丑闻牵涉到与业绩无关的天价高管薪酬（“肥猫”丑闻）。之后Greenbury Report和Hampel Report就是针对董事薪酬治理方面的努力。

The main recommendations of the above committees were subsequently incorporated by Turnbull Committee into the original Combined Code of the Committee on CG in 1999, but this code also emphasized the broader responsibility of companies with respect to safeguarding SHs’interests. “The board should maintain a sound system of IC to safeguard SHs’investment & the company’s assets”. Combined code has been revised since 1999 & in 2010 it included several new recommendations:  requirement for chairman to be re-elected annually & to encourage greater diversity (esp. gender diversity) of the board, more emphasis on BOD performance in the larger companies being independently reviewed on a regular basis, disclosure of the biz model & responsibilities relating to risk; such as how much risk the company can accept & how much it will need to avoid, reduce or transfer. These new requirements link well w/new proposals for a broader corp reporting framework - IR (2013). 1999年出台以及后来修订的英国《合并治理准则》增加一些建议, 如每年选举董事长，鼓励董事多元化（尤其性别），增加对大公司董事会的绩效评估，披露业务模式及风险管理。这些要求自然和2013年起开始倡导的综合报告对接上。

The revised combined code also makes new recommendations about the need to align remuneration of directors to longer-term performance metrics & having a closer interface btwn NEDs &EDs. The changes also include the chairman's responsibility relating to identifying the training & development needs of directors & around more effective external communications with SHs, including institutional investors. 修订的《合并治理准则》还要求基于长期业绩设计董事薪酬，更多ED和NED之间的协调，董事长负责培训和发展BOD成员，更多与外界股东有效沟通（包括投资机构）。

More effective company law, listing rules, regulations, accounting& auditing stds & CG codes have clearly provided a better structure & basis for the governance of companies' behavior in relation to the original agency problem. Whether these governance structures are principles or rules-based, the essential agency problem still seems to remain, as highlighted by continuing evidence of director failings & further corpf ailures. 公司法+上市条例+监管规定+会计准则+审计准则+公司治理准则=约束不当公司行为的努力=》解决代理问题（译者注：方法多，说明问题难解决）。无论是原则还是规则导向的公司治理都没有或者无法从根本上解决代理问题，因为有关董事失职或公司倒闭的事件一直此起彼伏。

Reliance on voluntary codes, professional stds & even legislation may not provide an adequate safeguard against governance failure unless BOD, on behalf of SKHs, set a clear ‘tone from the top’& actively create a culture of transparency, honesty & integrity in the orgs at all levels. 自愿性准则，专业标准甚至立法仍不足以保全公司治理，除非BOD，基于SKH利益，设定一个高层基调并在组织各层面力推透明/诚实/诚信的组织文化。

7

CG & Cultural values 基于治理和组织文化的价值观

For CG to be effective & to safeguard SKHs’ interests properly, a climate should be created where those working for the SKHs & on behalf of them, are conscious of the ultimate economic, social & ethical consequences of their decisions & behavior (at whatever level). 只有人们意识到他们的决策和行为（无论什么职位）会切实带来经济，社会和道德层面的影响，公司治理才可能有效实施来保障SKH利益。

Directors should promulgate & inculcate in their orgs a climate of responsibility, accountability & transparency. This can be achieved by the use of formal structures such as audit & remuneration committees, by appointing effective & independent NEDs & by tightening up on auditing regulations, but it is mainly achieved by having a sustainable, longer-term & broader perspective & by encouraging all to act ethically. BOD应在组织内大力倡导和灌输职责/义务/透明理念, 设立审计和薪酬委员会，任命称职的独立NED，加强审计，更重要的秉持一个可持续/长期/更广泛的治理理念并鼓励道德的行为。

Companies can encourage such behavior by designing appropriate corp codes of ethics & behavior in orgs, supported by a system of cultural values which are themselves linked to individual performance appraisal & professional development. E.g., promoting consonance between the aims of primary SKHs & those of other SKHs can create a team spirit where all perceive they are working for a common purpose or goal. This commo npurpose can also be reinforced by having a clear corp mission  & setting strategic aims & objectives which are coherent & sustainable & which can be broken down into meaningful & measurable departmental & team objectives that all within the org can buy into & relate to. 公司可设计合适的公司道德准则，员工行为守则，把公司价值观和员工业绩评估以及职业发展相结合，把主要SKH和其他SKH目标一体化。共同的目标体现在公司使命/公司战略/部门目标等上。（译者注：文末广告-完美促销“P1+P3”组合产品）

This kind of climate is promoted by such instruments as: 公司要宣扬下述理念和具体做法：

·        Equitable productivity & bonus schemes 平等的绩效和奖金制度

·        Transparent recruitment & promotion policies 透明招聘和升职政策

·        Good staff welfare & reward systems 良好的员工福利和激励制度

·        Effective environmental policies, and 有效的环保政策

·        Good customer relations. 良好的客户关系

All of these are based on an overriding quality culture, where effectiveness & efficiency are promoted & ever yaspect of the orgs activities are considered to be important at all levels, where people of all levels are valued & respected & where the impact of all decisions on the interests of SKHs is always recognized & anticipated. 上述一切都建立在一个至高的企业文化之上，倡导高效工作，尊重每个人的努力，充分认识到所有决策都影响SKH利益。

Good governance must extend beyond basic compliance w/ external reporting & auditing requirements, to areas: IC, performance measurement & mgt, budgetary control systems, quality mgt, staff recruitment, training & development & to reward & promotion systems in an org. 总之，健全的公司治理除了基本的对外合规，还包括内部努力：内控，业绩评估和管理，预算控制，质量管理，员工招聘培训和发展以及激励制度（译者注：P5即视感）。

Conclusion 总结

A biz that embraces the underlying principles as well as ‘being seen’ to be compliant w/ CG codes, is better placed to protect the interests of its SKHs, incl. public interest, from a more sustainable & longer-term perspective. 从持续发展角度来看，实施有关治理原则并且（至少看起来）合规的企业，更好保障SKH（包括公众）的利益。

This wider view of agency theory is in stark contrast to the narrower‘stewardship’ perspective, but whichever perspective is taken, CG & all it entails is an essential framework in which the rights, responsibilities& rewards available to the principals & their agents is best balanced.广义代理理论和狭义管理责任形成鲜明对照；但无论哪种角度，治理核心仍是追求股东和代理之间责任义务及回报的最佳平衡。

The development of an informal corp culture & ethical values to underpin & support formal CG structures is essential. This approach reduces the risk of negative behaviors such as, wastefulness, inefficiency, idleness, greed, fraud, deception, bribery or theft occurring or being tolerated. 培育非正式的公司文化和道德价值观来加强和支持正式的公司治理很重要，帮助减少一些消极的行为，比如浪费，低效，停工，贪婪，欺诈，欺骗，贿赂或盗窃。

Such a biz culture can sustainably meet & balance the needs of SHs, lenders, employees, suppliers, customers & the general public, recognizing their respective interests as being entirely compatible over the longer term. 这样的组织文化可持续满足并平衡各方需求（如股东/银行/雇员/供应商/客户及公众），他们的利益诉求长期来看是可以兼容并蓄的。

This balance can only be realistically achieved if effective acceptance of CSR, rather than compliance w/ governance structures alone, becomes part of the ‘mindset’ of all those working in biz orgs;so that accountability & responsibility to all SKHs is delivered from the inside out. 只有在真正地接受CSR而不只是做到对外合规，并把CSR变成所有雇员（包括高管和一般员工）思想一部分，上述平衡才能得以实现；这样，对所有SKH的义务（对上义务）与责任（工作职责）才可以由内而外地实现。

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