A Study Of The Civil Liability Of The Director To The Corporation Creditor

In the administration of the affairs by the director, various of legal relationship takes place between the directors and the creditors of the company. In real life, the directors usually make improper use of the powers and violate the lawful interests of the creditors. While according to some scholars and our laws, the directors are defined as the organ of the company, which is deemed to be the proper self of the company, and their activities are definitely seen as the company's activities. Therefore, when the directors engage in a violation, it is up for the company to assume the liability, while the directors do not need to bear any liability. This has received many criticisms from all around. Some counties have revised these corporate laws requiring the directors to bear the liabilities to the creditors. But where is the jurisprudence basis? what on earth is the nature? And under what conditions the directors should bear liabilities we can't find the answers .By analyzing the questions above, the author demonstrates that the directors should assume personal liability to the creditors, and suggests to stipulate a jointly and severe liability between the company and the director who commit the invasion. This thesis consists of four chapters. Chapter one is about the definition of directors, and traditionally views on the status of directors; in chapter two, the author analyses the jurisprudence basis of the directors'liabilities to creditors; chapter three is about system construction of the liability to the creditors; the last chapter tells our own legislative conditions and poses the author's own suggestions accordingly. Chapter one is the basis of this thesis, it introduces the definition of the directors and poses some traditional opinions as well. This part consists of two sections. Section one introduces the conception ,the classification of the directors,and the relation between the directors and corporation. section two presents the traditional central belief that the directors are not liable to the creditors, it also makes the traditional views on this issue, which has set up a foundation for the following discussion. In chapter two the author gives a detailed explanation on the jurisprudence basis why the directors should assume personal liability. This chapter is made up of two parts. Part one illustrates the reason from necessity, namely, the establishment of the core status of the board of directors and increasing morals risk of the directors. While part two sees from possibility, namely, the principle of honesty and faith and the opinion of the social duty. Part three uses the experience of other countries for reference. Based on the above two chapters, chapter three goes on to describe the system construction of the liability to the creditors. There are totally three sections in this part: section one analyzes the nature of the directors'responsibilities to the creditors, section two analyses the essential factor of constituting the directors'liabilities to the creditors; the last section defines the concrete situation of the directors that are possible to be held accountable for these behaviors. With a combination of our actuality and the above analysis, the author puts forward his suggestions for our legislative works in the last chapter, which contains three parts. Part one sets forth our present regulations on the personal liability of directors, part two analyses the reason why we failed to have a regulation on the personal liability of the directors, the author summarizes it to be two: one is the strict application of the theory of corporation organ, the other is because our legislation on this issue was an outcome of our former planned economy, in the third section, the author forwards his suggestions on this issue. The fruits of this thesis lies in the disclosure of the jurisprudence basis of theliability the directors bearing to he creditors, and analyses the nature,essential factor and concrete situation of the liability. The exposure of the ignorant of this problem in the legislative and judicial practices, and this can not only contribute to the protection of the lawful interests of the creditors, but also be of great importance for the regularization the behaviors of the directors. As of the techniques adopted in this thesis, the author uses a comprehension of historical method and a comparative method in explaining the traditional views. While analyzing the central idea, the author borrows a method with both theoretical and practical, as well as a comparative one to clearly explain this issue. In the explanation of our legislation, the author adopts the three methods , namely ,a summarized method, a deductive method and a comparative method, through these methods, the author deeply plumbs into the defects of our legislation, and at the same time, poses his own suggestions accordingly. Through all the above analysis, the author hopes to give a clear and thorough overlook of the status of the directors in company, and meantime, hoping his study may be helpful for our future legislation.