Study On Joint And Several Liability Of Corporation Law

Joint and several liability existed since ancient times. Joint and several liability in ancient China is mainly reflected pants and Baojia. Joint and several liability in sense of legal theory originated in Roman law, the provisions of the joint of the debt first appeared in a decree of Dikeliting, and gradually formed a system. Joint and several liability, after being elected, have been widely applied in the civil law and common law systems, and also have the trend of expansion., There are also a large number of joint and several liability provisions in Civil and Commercial Law as well as economic laws of China. Joint and several liability are preferred by legislators in countries and regions of the world are nothing more than the following reasons. First, based on the inseparability of damage. Second, affected by "contributory negligence" in the common law system. Third, reduce settlement risk. Fourth, joint and several liability make a great convenience in legislation. However, a wide range of joint and several liability applied in practice caused some problems, Thus, in recent decades, many countries have started to reflect on joint and several liability, hense a thought of criticizing and reformimg appeared.The company setting up has certain rights ability, behavior ability and accountability,whose legal status is between societies having rights ability and societies having no rights ability,which can be called quasi rights ability society. The law of corporation in China didn't make a company setting up as a main body of responsibility, didn't distinguished specific circumstances and generally required promoters to bear joint and several liability.To improve the liability provisions when a company can not be established, we should should make the company being setting up as one of the main body to take responsibilities of the main provisions distinguish between different situations,distinguish different situation determine the main body of responsibility. Meanwhile referencing laws of other countries,and respect for party autonomy.It is lack of theoretical basis for promoters to take the capital adequacy responsibility,and it is also against the fairness and integrity in practice.When non-monetary assets are overvalued, company director and the estimators should also be looked into.At the same time,it is a trend to abolish the capital contribution guarantee responsibility of sponsors.In corporate personality denial system, it is lack of theoretical basis for shareholders to take the joint and several liability. And if the controlling shareholder take joint and several liability,it is negative to protect the interests of minority shareholders. The approach to complete the responsibility system In corporate personality denial system is that,when the controlling shareholders are also directors, the shareholders should take full responsibility directly;when the controlling shareholders are not directors, but behind the scenes of the board of directors, directors and controlling shareholders shall be jointly and severally liable. This conclusion also applies to one-man company.The directors shall be liable for the third party is a trend for the two families of Laws. The nature of this responsibility is a statutory responsibility,and is a product of social policy. Directors jointly and severally liable are not conducive to constraint director rights. Directors should bear the primary responsibility and the company assume additional responsibilities.In short, the joint and several liability is a heavier responsibility, and is contrary to the principles of civil law.It is likely to cause unfairness to the person responsible if the system is used improperly. Increased responsibility may inhibit the enthusiasm of actors, and do detriment of the efficiency value. Joint and several liability is optional for the creditor,which limite the deterrent function of joint and several liability. Face of such limitations of joint and several liability,the idea of this artical is to limite the applicable conditions of joint and several liability, reduce to apply joint and several liability in "Corporation Law " . At the same time there is another idea of academics is to make innovation of joint responsibility itself. Foreign law, such as the U.S. law, the reform and innovation of joint and several liability system is undergoing in its own way at the meanwhile.