The Legal System Research Of Creditors To Participate In Corporate Governance

The traditional theory of the Companies Act which is core of shareholder centrism consider that corporate governance is mainly refers to the company’s internal governance structure—internal agencies and the relationship, and the process of the distribution of powers and balances among shareholders, board of supervisors and managers. The viewpoints is excluded from of other stakeholders, creditors as outside the company have no right to participate in corporate governance. The needs of the development of the theory and practice, causing people to re-think and review of corporate governance, strengthen the constraints of internal corporate governance checks and balances, and ultimately the integrity and unity of the internal governance and external governance, which become the main task of corporate governance faced.The existing Companies Law to consider more of a company and shareholder interests, however,the protection of the interests of creditors is very limited, even if the law is sometimes involved, often starting from the company and shareholders, and shareholders’interests to the highest position, thus,the interests of creditors in a subordinate position. Existing corporate governance system, on the other hand, also there are many problems, such as board system is not perfect, the Supervisory Board functions virtual obviously and internal control seriously. Visible, creditors positive and active participation in corporate governance, is not only the reality of the need to safeguard their own interests, but also to improve the corporate governance system, what is more, an important means to promote the company’s continuous development.China’s external market control mechanisms could not be truly built, and the case of internal corporate governance structure is still not perfect. Both the model of Anglo-American countries to external control, as the leading creditors indirectly involved in the mode of corporate governance and the model of Japan, the German bank-based governance can not be fully applicable to our country. Therefore, the building of the creditor to participate in the system of corporate governance, China should take the legal system which is not exactly the same them, giving the creditors a combination of direct and indirect take part in corporate governance.The main measures are as follows:First, the establishment of the General meeting of creditors, and the composition of the creditors’ meeting, terms of reference, the time of involvement of creditors in corporate governance to make specific provision, and ensure that creditors on corporate governance and business activities before, during, and afterwards the overall supervision and restraint. Second, the establishment of a creditors ’director system, clear the positioning of the directors of creditors, the creditor directors generation, the terms of reference and the right to limit, to ensure that the company operate with full ownership of the right at the same time, maintain the balance of the interests of creditors and shareholders. Third, to improve the existing system of the Board of Supervisors, on the one hand, a creditor supervisors, the participation of creditors in corporate governance, strengthen the role of creditors in the company’s supervisory system; on the other hand, the refinement of the board of supervisors powers to exercise the procedures and processes, and strengthen its oversight functions; meanwhile, we should pay attention to deal with the relationship between the creditors Directors and the Board of Supervisors. Forth, the establishment of the litigation system of the creditors on behalf, the distribution to creditors on behalf of the litigation system of the plaintiff, the defendant the burden of proof, the attribution of the outcome of the proceedings to the corresponding provisions. In addition, also we should be clear that shareholder derivative action derivative action restrictions on creditors. Fifth, to establish the personal liability of directors, supervisors and senior management to creditors, to confirm the personal responsibility that the directors, supervisors and senior management are abuse of power under certain special circumstances, which is result in the loss of the interests of the creditors.