Research On The Director's Liability For The Third Party In Japan

In modern company law, with the establishment of Board-of-Director Centralism, the power of the company has focused on the board, or it can be said that members of the Board master the power. The Action of the directors directly related to the company's operation and development, and meanwhile it played a decisive influence to the interests of shareholders and creditors. So the significance between the directors and the third party began to transform to direct relationship from the indirect relationship. The philosopher Montesquieu once said:"All the people owing the power are easy to abuse it. They use it until they encountered the limits."Along with the power expansion of directors, shareholders particularly the minority shareholders and creditors faced more risk of damage. In order to prevent abusing power and protect the interests of shareholders and creditors, according to the principle of rights and obligations, authority and responsibility, many countries strengthened the responsibility of directors and established the system of director's civil liability for the Third Party.The Chinese Company Law promulgated in 2005 didn't regulate the institution on the director's liability for the Third Party, but as our neighbors Japan, he has a specific regulation about the liability of directors and always continues to improve and amend. This paper is trying to give an introduction on Japanese system of the director's civil liability for the Third Party, mainly researching on the institution's body, legal basis and case status, reflecting the status of China's legislation and related theory, suggesting some specific proposals to promote the our company legislation for some progress.The introduction briefly demonstrated the necessity of establishing the institution on director's liability for the Third Party and then further illustrated the institution itself. The article was divided into four chapters .At first it introduced the body of the institution, analyzed the institution's legal basis, and then summed up the institutions combining with the Japanese jurisprudence .Finally learning with relevant legislation from Japan , it proposed a outlook for the creation of the institution in our country .The first chapter introduced the institution's body on the director's liability for the Third Party. Firstly, it interpreted the regulations of this institution in Japanese Company Law, and then specifically introduced the nature struggles on the institution in Japanese academic world .After that there was a brief evaluation. I think the nature of the director's liability for the third party is special statutory responsibilities. The following part analyzed the concept on special type of directors which showed the Fact Directors and the Name Directors have to assume the responsibility, but the Apparent Directors don't. On the problem of responsibility scope, the article varied the concept of direct damage and the indirect damage. The Japanese theory on the damage have the transition from the Limited Indirect Damage theory to Both Direct and Indirect Damage theory and the article analyzed the rationality on the latter. About the scope of the third party, the article gave a category discussion. The conclusion is that the third party contains the shareholders and creditors in the circumstances of direct damage and the shareholders excluded in the circumstances of indirect damage. Finally, the writer analyzed the element of the institution and confirmed that the director of the company's"duties laxity"behavior was the condition of a third party assuming responsibility in Japan's Company Law. The director's surveillance obligations are concerned here and the causal relationships among the elements are analyzed.The second chapter was about the legal basis on the institution of director's responsibility for the third party. Firstly, from the different views of the Japanese scholars on the system ,the article classified the legal basis which mainly included the theories of"company's property maintain","responsibility for the company's bankruptcy"and"director's fiduciary duties".Even though various point of views have theoretical significance, but it also raised a lot of questions. And then, this paper analyzed the relationship among the directors, shareholders and creditors with their interests. When a company declined from a normal situation to the brink of bankruptcy or insolvency, the directors'affiance obligations also experienced a process from shareholder to creditors. As the directors had the obligation to maintain the company's property, so when the company was over a debt or bankruptcy, the directors had the affiance obligations for the creditors .So the creation of the institution is on the need for protecting the interests of the creditors.Chapter three was about the implementation of the institution on the director's liability for the Third Party. First of all, on the basis of packing up the cases, the writer summed up the conditions of Applicating the institution, that was it played the functions as exceptions to the principle of civil liability and corporate personality independent system . When the company was into bankruptcy or debt and the creditors couldn't be completely paid by the company, it was the condition of Applicating the institution which mean compensation obligations were expanded to the duties slacking directors. The scope of the compensation was condition -limited direct damage and object-limited indirect damage. On the issues of claimer ,the individual claimer right was admitted ,but the numerous claimer rights couldn't be individual relieved in order to avoid the unfairness .Then the writer packed up some cases in the form of tables which intuitively reacted the actual situation of Japanese jurisprudence.Chapter four was about the prospect of our country's institution on the directors'liability for the third person. Firstly, the writer summed up China's current regulation about the institution, and affirmed the significant breakthroughs on the"corporate insolvency law". Then, the writer put forward the expectation of the institution design in china .That was when the company was into bankruptcy or in the brink of bankruptcy ,we should fetch in the institution .The scope of damage included the direct damage and indirect damage , and the third party should be given equal relief.