The impact of Covid-19 is likely to cause operational and liquidity difficulties for companies. Aggressive decisions are required to ensure companies are able to navigate through the crisis but directors are placed in a delicate situation under Sri Lankan law, owing to instances of personal liability. Directors must be mindful of their exposure, particularly in relation to statutory dues, insolvency and duties imposed under the laws relating to companies. Directors are often nominated to their office by shareholders and may be expected to act in the interest of the nominating shareholder. But a director must be aware of the company’s obligations to its employees, suppliers, etc., particularly in this ongoing crisis, and act accordingly.
2019新型冠状病毒的影响可能会给公司带来运营和流动性困难。需要作出积极的决定，以确保公司能够度过危机，但根据斯里兰卡法律，由于个人责任，董事们处于微妙的境地。董事必须谨记自己所面临的风险，尤其是在法定应付款、破产和公司相关法律规定的义务方面。董事通常由股东提名来担任其职务，并有望为提名股东的利益行事。但董事必须了解公司对员工、供应商等的义务，尤其是在当前持续的危机中，并应采取相应的行动。
In this context we set out below a summary of several provisions of Sri Lankan law in terms of which directors can be held personally liable. This is not an exhaustive list of duties and obligations resulting in personal liability.
在此背景下，我们在下面概述了斯里兰卡法律中可追究董事个人责任的若干条款。这并不是导致个人责任的详尽的职责清单
Personal liability under Companies Act, No. 07 of 2007 (“Companies Act”)
根据2007年第7号公司法（公司法）规定的个人责任
A director is personally liable for any loss caused by his/her failure to:
董事个人对因其未能做到以下几点而造成的任何损失负有责任
- act in good faith in the best interest of the company;
真诚地以公司最大利益行事 - exercise care and skill; or
行事谨慎和技能；或 - act in accordance with the Companies Act and the Articles of Association of the company.
按照公司法和公司章程的规定行事
A director’s liability arises even if he/she did not gain from the transaction in question.
董事即使没有从有关交易中获利，也应承担责任
There are additional remedies available to shareholders or other entitled persons under common law, including, inter alia, damages, compensation, accounting for profits and restoration of the company property.
根据普通法，股东或其他有权利的人可以使用其他补救措施，包括赔偿、补偿、利润核算和归还公司财产等
Duty of Directors on insolvency
董事对破产的责任
A director who believes that the company is unable to pay its debts as they fall due (i.e. insolvent) is under an obligation to call a meeting of the board of directors to consider whether, the company should either apply to court for winding up (and the appointment of a liquidator or an administrator) or continue to carry on business.
董事如认为公司无力偿还到期债务（即资不抵债），则有义务召开董事会会议，审议公司是否应向法院申请清算（并委任清算人或管理人）或继续经营业务
In arriving at these decisions, directors must act in good faith and take into consideration the financial statements, independent valuations etc.
在作出上述决定时，董事必须本着诚信行事，并考虑财务报表、独立估值等因素
Where a director fails to call a meeting of the board of directors as set out above, at the time the company was insolvent, and the company is subsequently placed in liquidation, the court may on the application of a creditor or the liquidator, make an order that the director is liable for the whole or any part of the loss suffered by the creditors of the company as a result of continuing business.
如果董事未能按上述规定召集董事会会议，而公司资不抵债随后进入清盘程序，法院可根据债权人或清算人的申请，提起诉讼，责令董事对公司债权人因持续经营而遭受的全部或部分损失承担责任
Further, where a meeting of the board of directors was called, but the directors decide against applying to court for winding up whilst not having reasonable grounds for believing that the company was able to pay its debts as they fell due, and the company was subsequently placed liquidation, the court may hold those directors who voted against winding up of the company personally liable for the whole or any part of the loss suffered by the creditors of the company as a result of continuing in business.
此外，如果董事会会议已经召开，但董事们在没有合理理由相信公司有能力偿还到期债务的情况下，决定不向法院申请清算，而公司随后进入清盘程序，法院可要求那些投票反对公司清盘的董事对公司债权人因持续经营而遭受的全部或部分损失承担个人责任
Duty of directors on serious loss of capital
董事对资本严重损失的责任
Directors are required to call an extraordinary general meeting of shareholders if the net assets of the company are less than half of its stated capital. Every director who knowingly and wilfully authorised the failure will be guilty of an offence.
如果公司的净资产少于其规定资本的一半，则董事必须召开股东特别会议。每位董事如果明知故犯、故意授意，将构成犯罪
Directors’ right to rely to rely on professionals and experts
董事依靠专业人员和专家的权利
It has been established that a director may be deemed negligent where he/she fails to seek appropriate expert advice. Directors are permitted to rely on professional or expert advice given by employees of the company, professional advisors or experts, and any other director or committee of directors in which the particular director did not serve. In doing so a director must act in good faith, make proper inquiry where required and should have no knowledge that such reliance is unwarranted. Directors seeking to rely on professionals and experts should maintain suitable records which may be used to establish that they acted on expert advice.
根据规定，如果董事没有寻求适当的专家建议，则可被视为过失。董事可依靠公司雇员、专业顾问或专家以及任何其他董事或董事会提供的专业或专家建议。在此过程中，董事必须本着诚意行事，在有需要时进行适当查询，并且不应知道该等依赖是不必要的。寻求依靠专业人士和专家的董事应保留适当的记录，以证明他们是根据专家意见行事。
Offences and personal liability under other statutes
其他法规的罪行和个人责任
Directors can be personally liable and/or be prosecuted for certain offences imposed under statutes. For example, certain labour laws, Inland Revenue Act, Foreign Exchange Act, Imports and Exports (Control) Act, National Medicines Regulatory Authority Act, Consumer Affairs Authority Act, Compute Crimes Act, Prevention of Terrorism (Temporary Provisions) Act, Financial Transactions Reporting Act, and etc. provide for directors to be prosecuted for non-compliance by companies.Directors should be aware that they can be prosecuted for offences or held personally liable under these statues, even if the company is wound up and the claims against the company are extinguished.
董事可能会因法律规定的某些罪行承担个人责任和/或被起诉。例如，某些劳动法、税收法、外汇法、进出口（管制）法、国家药品监管局法、消费者事务管理局法、计算机犯罪法、防止恐怖主义（临时规定）法、财务交易报告法案等规定，董事将因公司不遵守规定而被起诉。董事应意识到，即使公司清盘且对公司的索赔已被撤销，也可能因违反这些法规而被起诉或承担个人责任。
A director may avoid liability if he/she can prove that such offences were committed without his/her consent or concurrence and that he/she had exercised all due diligence to prevent the commission of such offence.
如果董事能够证明该等罪行是在未经其同意或同意的情况下实施的，并且已尽了所有尽职调查以防止犯下此类罪行，则可免除责任
Examples –
例如：
EPF/ETF
雇员公积金/信托基金
Directors are deemed to be guilty of an offence for non-payment of EPF and ETF unless proven that the offence was committed by the company without the director’s knowledge or that the director had exercised all due diligence to prevent the commission of such offence. Directors should be mindful that the reduction of salaries without employee consent cannot be effected under Sri Lankan law, thus companies can remain liable to pay the full salaries together with the applicable EPF/ETF contributions. Failure by companies to pay the EPF/ETF contributions on the full salaries (including the amounts that should be deducted from the employees), and resulting penalties for late payment, will expose directors to prosecution for non payment of these amounts.
除非证明该罪行是公司在董事不知悉的情况下实施的，或董事已尽了所有的尽职调查以防止犯此罪行，否则董事被视为犯了不缴纳雇员公积金和信托基金的罪行
Taxes
税收
A director will be personally liable for the payment of tax (if they fell due) if the director alienates, charges or disposes of moneys received or accrued in respect of which tax is payable or disposes of funds belonging to the company that are in possession of the director, if the tax could legally have been paid from or out of such funds. A director may be not be personally liable if the monies were paid on behalf of the company in connection with an amount payable that has priority over the tax payable in law or equity, or if at the time the monies were paid the director had no knowledge and could not have been reasonably expected to know of such tax liability.
如果董事转让，收取或处置已收或应计的应缴税款或处置属于公司的资金，如果可以合法地从这些资金中支付或从中支出，则该董事应亲自缴纳税款（如果到期）。如果款项支付是代表公司支付，而该笔款项的应缴税款优于法律的应纳税额或股本，或者在支付该笔款项时，董事不知道也不可能合理预期知道该笔款项的税款责任，则董事可能无需承担个人责任
Winding up and personal liability of directors under various statutes
根据各项法规对董事进行清算和个人责任
A director may not be prosecuted or held personally liable for non-payment of statutory dues unless they fell due prior to the winding up of the company. Any action against a director for such payment has to be instituted separately. Such action can be instituted against a director by shareholders, persons entitled to receive such payments and even by the company itself.
董事不得因不支付法定应付款而被起诉或追究个人责任，除非这些款项在公司清盘前到期。针对董事提起的任何诉讼必须单独提出。股东、有权收取此类款项的人员甚至公司本身均可对董事提起诉讼