The Directors Of Bankrupt Civil Liability

Enterprise debt is essential for the development of enterprises，and debt financing is oneof the enterprise’s major means of financing. Enterprise raises funds to expand the sizethrough the issuance of bonds. With the further development of enterprise, it is no longer apurely for-profit body, and has been a part of a major social and economic activity. Enterprisedebt distribution is no longer limited to a single subject and the fixed region, its broad scopeand the large of the amount, almost enough to affect every social subject. Protect the interestsof creditors is conducive to social stability and the virtuous circle of economic. Traditionalcorporate law focuses most of its part on the rights and obligations between the enterprise toits members, directors and shareholders, with little or no consideration of the rights andinterests of enterprise’s creditors and other stakeholders. But, when the enterprise is ininsolvent state or forthcoming in the insolvent state, the enterprise has how much surplusproperty also means that creditors can apportion to how much property. At this point, thebehavior of directors undoubtedly directly affects the interests of creditors.Both of the common law countries and the civil law countries have a considerable legalto restrict the behavior of the directors, when the enterprise is in insolvent state. In our country,the provision in this regard is relatively backward. Bankruptcy law, company law and otherregulations related to this regard are lack of systematic and maneuverability, furtherweakening the legal regulation’s effects. This article try to establish an independent system inbankruptcy law to restrict the directors’ behave. If the directors violate these acts and damagethe interests of creditors, they should bear civil liability.This article is divided into five parts。The first section sets out the theoretical basic of thedirectors to bear Bankruptcy Civil Liability: protect the interests of creditors and the need tocorporate governance. When the enterprise is in insolvent state, shareholders are more likelyto give the directors more administrative privileges. The directors may damage the interests ofthe enterprise and the creditors in order to maximize their own interests. When enterprise is ininsolvent state, the remaining property is equivalent to the property of the creditors, and theirinterests directly affected by the behavior of directors, because creditors are in a weakposition. Based on protecting the interests of creditors and the need to corporate governance,it needs to regulate the behavior of the directors. In order to provide a basis for the article behind the reference, this article has investigated relevant foreign legislation.The second part describes the nature and liability principle of bankruptcy civil liability ofdirectors. The bankruptcy civil liability of directors is the tort liability. Since the directors arein violation of a statutory obligation to bear civil liability, according to the general legaltheory, breaching of statutory duty acts constitute infringement. The liability principle adoptsthe principle of presumption of fault.The third part detailed analysis the behavior of the directors through typed, which needto bear civil liability. This article takes the situation, which needs to bear civil liability, intofour categories: bankruptcy civil liability of fraudulent transactions, bankruptcy civil liabilityof wrongful settlement of debts, bankruptcy civil liability of malicious reducing property ofthe enterprise, bankruptcy civil liability of breach of obligations in the bankruptcyproceedings. In the bankruptcy proceedings，the director has series of obligations. If thedirector doesn’t carry out these obligations, they should bear civil liability. But, this situationis different to the first three types, and it will be described as an independent type.The fourth part describes that establishing a perfect system to require the directors tobear bankrupt civil liability is necessary and how to correctly handle the relationship betweenthe directors’ bankrupt civil liability and the legal personality denied. This paper argues thatrequiring directors to bear the bankruptcy civil liability and to deny the corporate personalityis not contradicted.The fifth part argues the specific construction of bankruptcy civil liability of directors.This section discusses the application, construction of bankruptcy civil liability of directorsand the mechanisms of accountability. Bankruptcy civil liability of directors is tort liability,and it has the same elements as general tort liability. When the directors should bear theliability, it requires the directors to return the property or to compensate for the losses, evenrestricts or cancels the relevant qualifications of the directors. In addition, the article willpursue the power of requiring the directors to bear the liability to the insolvency administrator.If the insolvency administrator refuses to fulfill the right, the creditors’ meeting may have theright.