The Research On Legal Problem Of Creditors' Participation In Corporate Governance

Stakeholders are natural persons or organizations which have important influence on the company by enjoying important and legal interests to the company, or the company has important influence on whose important and legal interests, creditors are one of the chief stakeholders by enjoying important and legal credits to the company. According to theory of corporate contract , theory of corporate social responsibility, theory of corporate democracy and theory of corporate body, all the stakeholders are subjects in corporate governance. Modern corporate governance should be stakeholders' co-governance, creditors' participation in corporate governance is the important component of stakeholders' co-governance. The function and value of creditors' participation in corporate governance lies in lowering creditors' risk to protect creditors' legal interests, and controlling insiders' control to ensure scientific and high-efficient decision of company.There are two types of legislative model on creditors' participation in corporate governance. The first one is indirect and passive model with the representative countries of Britain and America, whose characteristic is to give creditors right of influence on corporate governance indirectly by strengthening independence and neutrality of position of board of directors and requiring directors to undertake faith liability for company creditors, the function of organized capital creditors such as the bank is little in corporate governance; The second one is direct and active model with the typical countries of Germany and Japan, whose feature is that organized capital creditors such as the bank play a leading role in corporate governance with double statuses of chief creditor and shareholder. The legislation in China should adopt advantages of the two models, and amend and develop both of them on the basis of special condition and practical situation of Chinese transforming economy. Following the basic principal of "efficiency first and equality second", four legal systems should be built, they are the system of creditor' rally, the system of bank directors and supervisors, the system of vote by proxy of creditors , and the system of derivative suit of creditors.