| As the essence of corporation law, the legal issue of corporation governance is always a key point of the global research in corporation law. One of the developing tendencies of corporation governance in modern time is that stakeholders jointly participate in corporation governance. Creditor is a main part in corporation's multitudinous stakeholders. Therefore, the creditor's function in the corporation governance has been gradually paid more attention by the people. In the world, many countries and regions work hard and enact some relevant policies and laws.Looked from Chinese reality, under the instruction of the traditional idea of stockholder's interest paramount, we still abide by the power pattern restricted among the shareholder, director and manager. The provisions involve the protection of stockholder's rights in corporation law is core in core. When regarding the corporation's creditor, the law has generally no special voice except the possessor's right of corporation loan and the recompensed right in bankruptcy. Especially, because there is strong"dependence of bank"in Chinese companies, the bank creditor has played a significant role in corporation financing and the development for a long time as the main creditor of company. On account of the distance financing relation long-term kept between corporation and bank can not enables the bank to intervene the enterprise's decision-making and participate in the corporation governance, the main creditor's benefit is difficult to be protected in the law of corporation, and entrusts the contract law and the infringement law. Being the result, the bank's benefit cannot obtain the full protection. When regarding the multitudinous stakeholders to participate the corporation governance, our country's legislation considers the shareholder, trustee, manager, and also the staff instead of removing the bank creditor which creates the attenuation even flaw of the bank creditor's affection. Moreover, because of the insufficiency of the acquaintance to the corporation governance theory, the immature of the market economy development, the limit of the present regulations as well as the misunderstanding of people, it is difficult to form the scientific and united acquaintance to bank creditor's participation in corporation governance in our country, which causes correlation legislation to be very difficult to obtain the big breakthrough. Therefore, it is an essential and urgent topic to study the bank creditor's participation in the corporation governance.In this article, embarking from the theory of corporation governance, with the methods of comparative analysis, historical research and so on, the author inquires into the theoretical foundation on bank creditor, as stakeholder, joins in the corporation governance, elaborates the necessity and feasibility of the bank creditor's participation in the corporation governance, and inspects the foreign legal rules and practices on bank creditor's participation in the corporation governance. After analyzing the special situation and defect in China, finally, combining Chinese reality and profiting from foreign experience, the author puts forward some proposals on how to participate in the corporation governance for Chinese corporations. In addition to the preface and the conclusion, the main text altogether divides into five parts:Embarking from defining the concept of"corporation governance",Part one briefly introduces two kinds of representative theories ("stockholder's interest paramount"and"stakeholder"), and points out the advantages and disadvantages of them respectively through comparative method.The second part elaborates the bank creditor's significance regarding corporation's financing, lasts and development through the analysis of the relation between bank creditor and corporation, and then discusses the necessity and the feasibility for bank creditor to participate the corporation governance.The third part mainly introduces some legal provisions and practices on bank creditor's participation in corporation governance in America, Japan and Germany, analyzes the system origin, current situation and development in three countries. With the method of comparison, the paper gives an evaluation to three countries'practices and endeavors to seek some experiences which can be absorbed by our country.Part four inspects the of bank creditor's participation in corporation governance in our country. The author introduces some legal stipulations on bank creditor's participation in corporation governance, as well as the implementing situation, points out the system flaws on bank creditor's participation in corporation governance, and analyzes the reasons of weakening the function of the bank creditors those who participate in the corporation governance.In view of the unique system flaw in China, part five proposes two ways which can be chosen by bank creditor when participating in corporation governance, namely the bank creditor participate in corporation governance through the controlling mode of creditor's rights; after the condition is ripe, through the controlling mode of the stock right, and suggests to revise the relevant legal provisions of"Corporation law","Commercial Bank law","Bankruptcy law"and speed up the step of credit legislation on the premise of the principle which efficiency comes first with reasonable consideration to equality so as to complete the legal system of bank creditor's participation in corporation governance. |
