The Study Of Legal Protection Of Corporate Creditor's Interests

Trading is always full of risks. In addition to reasonable risks caused by force majeure and debtor's malmanagement, the major risk which creditor has to face is that debtor may break the contract maliciously. Accordingly, the important mission of law is to inhibit debtor's malicious behavior and ensure the order and fairness of transaction. In fact, people have endeavoured to conceive an effective risk sharing mechanism as well as related subjects'protection, expecially creditor's fair protection.As the accelerator of human's economic civilization development, morden company law system which is based on the effective risk sharing mechanism and reasonable interest balancing mechanism aroused extensive investors'enthusiasm rapidly and yeilded vast economic returns. However, with the birth and growth of one-man company and parent-subsidiary company group, the traditional interest balancing mechanism between company's creditor and shareholder has been challenged and questioned. Therefore, this thesis will take the protection of corporate creditor as a breakthrough piont, and reflect systematically on the interest balancing between shareholder and creditor with the methods of positive analysis, economic analysis and value analysis. Finally, this thesis will exam and improve the mordern corporate law system in our country.This thesis is mainly divided into three parts:Part One focuses on the advantages and inherent defects of the risk sharing mechanism and the interest balancing mechanism, two of which are constructed on the princple of shareholder's limited liability and corporate independent legal personality. Firstly, the principle of shareholder's limited liability which confine shareholder's invest risk accomplishes capital accumulation and effectively resolve the commercial finance problem. Secondly, the principle of corporate independent personality makes the corporation bear business risk independently from such inner members as shareholder and managing staff. So given the two basic principles, morden corporate system extensively reduces the cost of investment and transaction. Then with the separation of ownership and management, the development of equity financing impuls the combination of labor resources and capital. Accordingly, it optimizes the allocation of social resources, and raises efficence. But meanwhile, the defect that shareholder may defraud corporate creditor by abusing limited liability and corporate independent personality for self-interest is also implict in mentioned institutional arrangement.Part Two: Given the possibility that shareholder's limited liability maybe unfair toward corporate creditor, morden corporate law chooses to remedy such unfairness through specific institution arrangment, which mainly conprises doctrine of capital maintenance, corporate important affairs publication and corporate liquidation. This kind of corporate creditor's interest protection mechanism embodys the idea of prior protection by legislative regulation. But with the development of new corporate types which consist of one-man corporation and parent-subsidiary corporation, this mentioned traditional protection mechanism tends to be powerless in solving many practical problems. Accordingly, the hidden trouble that shareholder may injure corporate creditor's legitimate interests by abusing limited liability comes true.Part Three: Facing to the substantial unfairness caused by absolutely implementing principle of shareholder's limited liablity and keeping to traditional protection method for corporate creditor's interest, overseas corporate law has been positivly studying new interest balancing mechanism. At present, it mainly envolves three theories: disregard of corporate legal personality, de facto directors and equitable subordination claims against a subsidiary of parent corporation. Overall, it can conclude three features of morden corporate creditor's protection. Firstly, fairness and efficience have been two basic value objects of corporate law all the time. The perfection of corporate law system depends on its prompt response to business practice needs and reasonable coordination between the two values. Secondly, the mentioned three theories embody a combining tendency of logic and experience. Thirdly, as for the concrete operations, the three theories have one common feature:with the complement of after-equity, it establishes the trinitarian creditor's protection mechanism which runs through the establishment of contract to fufillment.Law is the product of social practice as well as the defender of social harmony. During the prase of primitive accumulation of capital, corporate law tended to focuse on the efficience object to encourage investment and pursue economic profits. But as market got mature and perfect, and shareholder's substantive position and function in new corporate type changed, the problem of corporate creditor's protection became even more prominent. So it has been an important task for modern corporate law to seek again the interest balancing place between shareholder and corporate creditor and improve traditional protection mechanism. By reviewing shortcomings of traditional corporate creditor's protection, and analyzing new theory and path in modern corporate theory and practice, this thesis preliminarily concluds that commercial faith which bases on reasonable anticipation among transaction subjects is essential to perfect market economy. Furthermore, the inhibition of shareholder opportunism, and improvement of corporate creditor's protection mechanism are undoubtedly the basis and safeguard of the faith.