Study On The Protection Of The Creditors Of One-man Company

The one-man limited liability company, as a special corporate form, presents some unique legal features that differ from the traditional ones. This uniqueness major express the uniqueness of the shareholders, the special governance structure etc. is different from the traditional limited liability of shareholders. Has resulted the creditors in the one-man limited liability company undertaking more serious risks which is different from traditional company creditors. Therefore, most of the countries of the world have made a regulatory system to one-man limited liability company. January 1,2006 official implemented our new "Company Law" officially recognized the one-person limited liability company's legal existence in our country. However, the related regulatory system has formulated very principle, simple, specific application is not strong, also left many loopholes and gaps need to make up. Judicial practice in China is mainly based on a traditional company's monitoring system and protection measures to protect the creditors of one-man limited liability company. As one-man limited liability company law firm different from the traditional characteristics of the company, and the left behind of relevant legal provisions, the one-man company's creditors bearing very serious risks.This thesis includes three chapters.Chapter one introduces the concept of one-man limited liability companies and legal characteristics, and the one-man limited liability company challenges the traditional theory of the firm. China's Company Law provides that a person is the only shareholder and owns the shareholder's total investment in the one-man limited liability company. Form of one-man limited liability company is only one shareholder of the company's total investment held by a limited liability company. Essentially one-man limited liability company is from a formal point of view, the company has funded a number of shareholders and the company jointly held by these shareholders, but only one is the real owner of the remaining investment. Its shareholders do not enjoy the real name of the investor interest. One legal feature of the one-man limited liability company is the uniqueness of its shareholder, followed by its simplified management structure, the third is the limited liability for its shareholders. This is also the theory challenges to the traditional companies. One-man company's unique characteristics and its contradiction to traditional legal system has aroused great attention to protect the interests of its creditors.The second chapter describes the legal protection of creditors of the company and the necessity to protect the interests of creditors. Shareholder limited liability regime lead to the law tilted the balance to shareholders, and transfer risk to the company's creditors, and creditors of the company has a weak position, so need to strengthen the protection of the creditors of the company. This is to protect creditors of the company one of the legal basis. Another legal basis to protect creditors of the company is a corporate social responsibility theory. More than just a tool for shareholders to seek their own interests, should also increase the maximum interests of shareholders other than the interests of the community, such as consumer interests, staff interests, the interests of small competitors, local community interests, environmental interests and public interests, also should includes the interests of creditors of the company. Uniqueness of the company's shareholders, simplified structure of the management, the characteristics of shareholders and company's personality is easy to make confusion makes the creditors of the one-man company undertaking more risks than creditors of the traditional company, so it's necessary to strengthen the legal protection of creditors of one-person company.Chapter three in view of the new "Company Law" one-person limited liability company's law, points out its shortcomings, from one-man company's set up, one-man company's operating as well as piercing the corporate veil and so on, suggested to improve our one-man company law and protection of its creditors interests. One-man company's unique characteristics determine the legal transaction with the creditor is different from the traditional, creditors of the company bear more additional risks. China's Company Law is mainly based on traditional protection systems to protect the interests of creditors of one-man company, which undoubtedly is very inadequacies that leads to creditors of the one-man company's practice is difficult to effectively defend their legitimate rights and interests through legal way. Therefore China must improve the relevant legal provisions. First of all, establish strict eligibility requirements in the company set up stage and revise the registered capital system. Since the establishment of joint other people can set up a traditional limited liability company, and then by means of transfer of shares to be translated into one-man limited liability company, the Company Law should be established on the derivative of one-man limited liability company's regulatory system. Second, in one-man company's operational phase, should strengthen the right of one-man company registration, publicity requests, such as uniqueness shareholder's identity, one-man corporate governance structure and the company's operating condition should be open to public to transact the civil subject to sufficient information to make decisions; company operating record strictly required to prepare a written requirement; Strengthen the supervision of one-man company in order to prevent financial abuse of power, the only shareholder of embezzling the company's assets; improve corporate governance structure of the only shareholder to form an effective monitoring mechanism; when necessary call on the sole shareholder of the company's secured debt to reduce the risk of creditors; increase the obligations of the sole shareholder of the danger to help one's trading partners and creditors have the necessary information in order to make correct and reasonable decision-making; Addition of only one shareholder or director of the creditors of the company's liability provisions to promote the work of its more faithful diligence, to promote and ensure the orderly operation of the company's health, thus reducing the risk of creditors. Finally, we should improve our disregard of corporate personality system. The application of that system conditions, such related concepts as well as a clear form of elements, enhance its maneuverability, so this is an important system to fully play a role. In addition, we should be timely to introduce the right to rule that of the U.S. subprime-called "deep-stone principle" and so with the combination of disregard of corporate personality system. The rule is disregard of corporate personality system in the company extended the liquidation phase, the purpose is to limit controlling shareholders have accused the company claims. The right to apply the rules of subprime situation and the elements and the application of disregard of corporate personality system almost the same situation and the elements. As the sole shareholder of one-man company's degree of control than controlling shareholders accused the company is worse than the degree of control, therefore, the system is very useful for the protection of creditors of one-man company. More importantly, the principle of belongs to the matching system, a combination of both to improve safeguard the interests of creditors of one-man company.