| Corporations not only bring us welfare, but also threaten or influence our life beyond natural persons' power at the same time. Especially with the expansion of the corporations and the Two Rights separation, today's corporations have become a huge monster which make us both love and afraid. In recent years, corporation engaging in illegal and criminal activities violates the interests of people events being repeated, for example, the Anurans case of American, and the cases of our country liking the case of Melamine, Nocuous Steamed Bread, illegal Raise Found, Forced deal, illegal Drain Contamination, corporeity's boss "run road" and so on. When innocent victims face a bankrupting corporation, claim for compensation getting nothing as a result and live in terrified accounting of the corporeity's illegal cases, liking the case of Melamine, the explosion of chemicals. People can't help asking that: Can make the persons who manipulate corporation actually and implement company affairs, liking directors, being liable for the damages, when they have faults? This is the social reality's torture to the rules of law and the legal theories. To an extent, that also reflects the social reality's requirements about a kind of new legal system of rules.On the problems that whether or not the directors should be liable for the damages of the third party, which they have faults in the process when conduct the corporeity's things. In Our country, the mainstream opinion is denial, they holding that directors should not shoulder the responsibilities of the damages to the corporate creditors. The main reasons as follows: it is opposed to corporate organ's theory that make the directors shoulder the responsibility together with the corporation. Then the corporate organ's theory seems becomes a big obstruction in the academic and legislation in the process of building the system about directors being liable for the creditors. While Whether or not Corporate organ's theory and the director's liability to corporate creditor are exactly incompatible?Is Corporate organ's theory inevitably repels the system of the director responsibility for the corporate creditors? If we want to stipulate the system of director being liable for corporate creditors' charley through drawing lessons from foreign legislative options, how to deal with relationship between this system and the system of corporate juridical person and how to stipulate the basic conditions of directors shall undertake liability for the creditors and the applicable situation scientifically? In the background that the corporate director's power expands, two rights separation deepening and infringement violations of company becoming frequency, answers to these questions, not only has important theoretical significance, but also has great practical significance.But for introduction and epilogue, there are four chapters in this article, the primary coverage's as follows:The first chapter is that “recognition corporate organ”. This party mainly studies whether or not the corporate organ's theory excluding the system of director's liability to corporate creditor. In adhering to the legal person in China, existing theories and practices are generally considered that the directors shouldn't be liable for the corporate creditors. If not, it is goes against to the corporate organ's theory. The main reasons are that the member of corporeity's action, liking director, is equal corporeity's action. The corporation should be shoulder the damages resulting from the members rather than the members, liking director, undertake the responsibilities. And for that, Corporate organ's theory seems becomes a big obstruction in the academic and legislation in the process of building the system about directors being labile for the creditors. However, this study found that it is not that. The corporate organ's theory's basic function is solving the problems of corporeity's action and civil liability, rather than exclusion or exemption the duties of the members of corporation, liking directors.It is different from the natural person, corporeity's action only make out by natural person. Without the members of corporation and its organ, the corporation can't do anything. The corporation takes any civil liability by its members, and take the consequence of the members' duty behavior, which is the most core content of the corporate organ's theory. Every theory has its culvert boundary, including the corporate organ's theory. This theory's fundamental purpose and basic function is to solve the problems of corporeity's action and responsibility. As a result, corporation can be a kind of body equal with natural person, and be fitted into subject of responsibility by law. In a word, in terms of liability, the corporate organ's theory fundamental purpose is to solve who is supposed to take the responsibility rather than expel the director's liability to corporate creditor. In Japan, Switzerland, South Korea and China Taiwan, they all have the legislation in plain text, which is the most illustration for this. In summary, Corporate organ's theory the director's liability to corporate creditor are not exactly incompatible and corporate organ's theory do not repels the system of the director responsibility for the corporate creditors.However, our country has made the Corporate organ's theory absolute,and has made the directors completely equal to “organs”. Considering that as long as adheres the theory of legal person, which can't ask the director undertake the liability to corporate creditor. Special historical origins and evolutionary background cause this kind of opinion in our country, but the great changes have taken place of corporate social practice, the phenomenon of member of corporation, liking director, controlling the corporation gets serious, and corporate group trend to strengthen, director(the member of corporation) do illegal infringement events happens frequently through the corporation. So in our country if want to solve these problems, we are must to amend the absolute understanding of the theory of corporation timely, purify the Corporate organ's theory original function, break the prejudice that thinking the Corporate organ's theory as a big obstruction in the academic and legislation in the process of building the system about directors being liable for the creditors, reflection law theory, legal system and the interaction between social reality demand, making directors being liable for damages to the corporate creditors in certain circumstances. In this way, not only be good for the protection of the interests of the creditors, but also beneficial to restrict the abuse behavior of directors, standardize corporate governance.The second chapter is about the responsibility legal basis of director's liability to corporate creditor. This party has well demonstrating the responsibility legal basis of director's liability to corporate creditor from different angles. First, making directors being liable for damages to the corporate creditors in certain circumstances, which is beneficial to balance the relationship among the directors, shareholder, corporation, and creditors. The director's liability to corporate creditor is demanded in the process of corporate juridical person's development to solve balancing every body's interests, and is the law based on the value concept of fairness and justice and the interests of 4 all parties for system design, and is the beneficial supplement of the company legal person system. Second, making directors being liable for damages to the corporate creditors in certain circumstances is also good for pushing the directors take their legal obligations as much as they can. Along with the rapid development of modern company, director duty theory experienced a development process that the director not commitment to the company creditors to the company creditor assumes the obligations; which is a development trend of modern company law. In the modern society, obeying the rule of law is the bottom line requirement of any social main body activity, which is the same to the company and its authority members. As organization of the company fulfils his obligations and activities only by directors and other natural persons, therefore, making directors being liable for damages to the corporate creditors in certain circumstances is not only the inevitable requirement must being abide by the principle of law, but also is the important path of corporate social responsibility. Third, making directors being liable for damages to the corporate creditors in certain circumstances that is advantageous to solve the agency problems between the directors and the creditors of the company in the process of development, and is also beneficial to reduce the agency cost and increase the total welfare of the society. In the modern corporation, with the trend of separation of two powers and the board of directors center doctrine and the development of a group of companies, the board of directors increasingly replaced shareholders becoming the agency, problems between the managers of the company, directors and other senior executives and consumers creditors of the company is becoming more and more serious. But these agency problems can't be resolved only through the interest rate market means. Therefore, it is necessary to establish the legal system based on the mercerization, aiming to solve the agent problem between the directors and the corporate creditors.The third chapter is the applicable conditions of the director's liability to corporate creditors. This chapter studies on the basic conditions of the director's liability to corporate creditors. The system of Directors liability to corporate creditors, surely functioning on protecting the interests of corporate creditors and limiting directors' behavior.However,if the system is improperly, it will increase the burden and responsibility on directors in the management of the corporation, which in turn will frustrate the directors' activity in corporate management. Therefore, it is necessary to define the system properly; the directors take the liability for corporate creditors only under certain conditions. Directors' liability to corporate creditors is essentially a special tort liability. The nature of civil liability directly affect the basic applicable conditions of liability, and therefore on the basis of considering the universality and particularity of directors liability to corporate creditors, this paper argues that the directors should take liability for corporate creditors under the following basic conditions: First, the directors are intent or gross negligence. It should insist on presumed-fault liability principle, not only to avoid the problem of creditor' heavy liability under no-fault liability principle, but also solve the problem of inadequate protection for corporate creditors under fault liability principle. Directors' subjective fault should be under intent and gross negligence, and should not include slight negligence. It is harmful to both corporate management and corporate health development to impose liability on directors when they are slight negligence. Therefore, in order to relive the pressure and the burden of directors' liability, the directors take liability only when they are intent and gross negligence. Only when they are intent and gross negligence, the directors shall be liable for damages to the corporate creditors. Second, the harm behavior is directors' duty behavior. Specifically, the actor must be a corporate director; second, the directors' action is to perform duties, it is a directors' duty behavior caused damage to the corporate creditors. Third, the corporate creditors have damage due to the directors' fault behavior. Directors take liability for the corporate creditors not only requires a subjective fault of the director, but also for the wrongdoing of directors objectively caused damage to corporate creditors. That is to say, on the one hand the company's creditors have damage, and there is a causal relationship between such damage and directors' fault behavior on the other hand. The system of directors' liability to corporate creditors requires the creditors' damage includes not only direct damage, but also the indirect damage caused by the fault of corporate directors.The fourth chapter is the analysis of types on the directors' liability to corporate creditors. It analyzes certain situations when the directors take liability to corporate creditors. In a shortly speaking, the directors take liability to corporate creditors under these cases:(1) The directors approved the corporation or themselves to perform tort action.(2) Directors take liability to corporate creditors when there are false statements. Corporate directors take the legal obligation and guarantee responsibility to make sure that there are no false records, misleading statements and material omissions on the information disclosure of corporation. Otherwise, Directors have false in their mind should be liable for victims' damages.(3) Directors take liability to corporate creditors when reducing corporate property maliciously. Corporate property is a general guarantee to creditor's creditor, reducing corporate property improperly would exceed the creditors' reasonable expectation on the corporate normal business risk judgment, and thus would be damaging to the interests of corporate creditors. Therefore, when the corporate directors maliciously reduce corporate property which caused damage to corporate creditors, the directors have fault in their mind should be liable for the corporate creditors. Directors reduce corporate property maliciously in the case of illegal distribution corporate profits, illegal equity buyback, to assist shareholders for capital withdrawal.(4) Directors take liability to corporate creditors in the case of corporate liquidation. The main function of corporate liquidation is to protect the interests of shareholders and corporate creditors. After the dissolution of the corporation, the directors have the duty to liquidate according to the law. In order to protect the interests of corporate creditors, urge directors to perform their obligations of liquidation according to the law, regulate corporate behaviors in market, there is a need for the law to regulate directors' liability when directors are slack in the process of corporate liquidation. To specify, the case directors take liability to corporate creditors in the process of corporate liquidation includes: directors take liability for corporate creditors when liquidation is delayed; directors take liability for corporate creditors when it is impossible to liquidate; directors take liability for corporate creditors when directors dispose corporate property maliciously; directors take liability for corporate creditors when corporation is logout improperly.(5) Directors take liability for corporate creditors when corporation is bankrupt. When a company is bankrupt, the beneficiary of the fiduciary duty of directors who should be corporate creditor, the corporate directors bear obligations to creditor when corporation is bankrupt, they should behave to maximize the benefit of their creditors, otherwise, the corporate directors should take liability for corporate creditors' loss. Generally speaking, directors shall be liable to creditors in the case of slacking to file for bankruptcy, continuing to expand transactions, improper payments behavior. |
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