| Nowadays, the functions of corporations are not performed by a single company, but by all kinds of group companies instead. With the development of the economy, the severity of the international competition, group companies are playing more and more important roles. According to statistics, about 44000 parent companies of transnational corporations and 28000 foreign subsidiary corporations control 2/3 the production, hold 70% of the direct investment to foreign countries of the world, 2/3 the world trades and more than 75% of the transfer of the patents and technologies. At the same time, the occurrence of group companies challenges current laws, not only involving the adjustment on group companies of corporation law, but also involving the law of securities law, tax law, labor law and the unfair competition law. This paper will only focus on the protection of the creditors in the field of corporation law.The traditional corporation law regulated the single and separate corporations, the roles of the shareholders, companies and the creditors were established on the basis of the independent entity and the limited responsibility of the shareholder, and the protection to the creditor is on the principle of capital maintenance, the publicity of affairs and the rules of corporation liquidation. But the appearance of the group companies broke this kind of idyllic situation; the traditional methods protecting the creditors can't meet the reality. Group companies are the unity of more corporations, the basis of which is the reinvestment of corporations (the control ling corporations) , their personnel chainsand controlling the contract and their rights in management and decision-making, and the interests and strategic goals of the corporations are realized in the way of control. Comparing with the single corporation, the controlled corporations are facing the risk of "being controlled", whose independent personality may be lost, and they may be regarded as tools of realizing the interests of the controlling companies or group companies, In the complicated group companies, the controlling companies may evade debts, harm the interests of the creditors by reinvestment, affiliated dealings and capital transfer from time to time. As outsiders, it is hard for the creditors to become aware of these situations or they have to cost much to investigate them clear. Hence, it is necessary indeed to protect the creditors in controlled corporations specially.More attention has been paid to the protection of the creditors in controlled corporations throughout the world; however, the provisions on the membership of the group companies in different countries differ. Some countries describe that the members must be the organizers (e.g., Taiwan), some extend to natural persons, or even countries (e.g., Germany). For the provisions of our corporation law and the convenience of discussion, this article confines the members of the group companies to limited companies and companies of limited liability, the protection of the creditors in group companies is also based on it, which is consistent with the economic reality that companies of limited liability are the main part of China. Meanwhile, creditors in control led corporations are protected by traditional corporation law of course, so this article only considers the special risk confronted by the creditors for the factors of "control", and discusses from the angle ofregulating companies' exerting their control force improperly as well their liability when violating the interests of the creditors in controlled corporations. This paper contains about 50,000 words, four parts.Part one expounds the basic theories of protecting the creditors in the controlled corporations. This chapter defines the group companies on the basis of introducing the legislation in other countries first, (This introduction grounds for latter discussion of provisions in other countries as well.) analyzes the material functions in laws and economy and the risk confronted by the creditors comparing with the single corporations, discusses the theoretical basis of modifying the application of the independent personality and limited liability in group companies and lays a foundation for the discussion of protecting creditors in group companies: Both recognizing the lawful existence of the group companies, encouraging centralization of corporations to perform the functions of groups and breaching the independent personality and limited liability of companies, investigating the legal liability of the controlling corporations to relieve the creditors and regulating the exercising of the control force.Part II discusses the protection of the controlled corporations. This chapter begins from the response of separate entity laws and the laws on the group companies. Focusing on the exercising of the control force, there are two routes to protect creditors in different countries, the first one is the method of separate entity law such as in England and America; the other is the law of group companies in Germany. The former insists on the principle of the independent personality, that the controlling corporations can'tdamage the interests of the controlled corporations. If the controlling corporations abuse their rights (over controlling) so that the independent personality of the controlled corporations is lost, then the veil of the controlled corporations shall be torn, the controlling corporations shall be charged with the direct liability for the controlled corporations. The latter recognizes the existence of the group companies as a whole in laws, classifies group companies by different groups, permits the controlling corporations damaging the interests of the controlled corporations for the interests of the whole groups and their own interests in certain circumstances, meanwhile, some measures are provided for to maintain the interests and capital of controlled corporations to protect the creditors.Part III continues the discussion of protecting the creditors in controlled corporations. This chapter discusses the protection from the angle of strengthening the responsibility of the director. No matter separate entity laws or the group companies law, the systems of protecting the creditors inosculate, namely, vesting the controlling corporations the status of the de facto director (or "shadow director" ), so the obligation as directors is imposed on. The principle of "interests of the companies", "interests of the creditors in companies " have been established gradually in modern governance of corporations, hence, interests of the creditors must be considered when directors undertake the bona fide obligation for the interests of the corporations, or directors should shoulder civil liability for the creditors. Nowadays, the method imposing obligation on the directors to protect the creditors is still fragmentary, or even unconscious. Relative provisions are seen inthe bankruptcy law, protecting the creditors afterwards. This paper holds that this method may be used as the general and frequent one, or even be brought into the main method in legal practice, which can simplify the theoretical basis on which shareholder bear responsibility, protect the creditors from the angle of "doer" but not "the status of a shareholder".Part IV discusses the current situations and the approaches to the improvement of protecting creditors. This chapter introduces the existing situations and the current provisions of group companies in China first, pointing out their confusion and defects, so some approaches are advanced to protect creditors: Firstly, we should make the definition of group companies clear, make their components and the features certain, study and weigh the adoptability and the alternative of English and American experiences in China. This article makes a comment on the draft of corporation law related and points out its defects in the end. |
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