On Directors’ Civil Liability To The Company’ Creditors In The Vicinity Of Insolvency

This thesis takes the directors’ civil liability to the company’s creditors in thevicinity of insolvency as the research object, and the main line that governs the thesisis along the "the premise–the ontology-Status quo–the way to perfecting. Theauthor points out that the two different modes that are adopted by the civil lawcountries and common law countries basing on summarizing domestic and foreignresearch status, and then the author pays attention to the ontology of the directors’civil liability to the company’s creditors. Then the author cards on the evolutionhistory of directors’ civil liability to the company’s creditors in the vicinity ofinsolvency in China’s legislation, presents the problems in this our country andproposes the corresponding solutions. In the writing of this thesis, comparativeanalysis, historical analysis, logical analysis, economic analysis and other researchmethods are used in this thesis.In addition to introduction and conclusion of the thesis, this thesis is divided intofour parts:The first part is the premise of the thesis. Firstly, after covering the directors’duty to the creditors from the macro-level and micro-level, the author holds thatdirectors’ duty to the creditors is important part of the corporation and insolvency lawin many countries, then the author sums up two different kinds of regulations, i.e.“thecompulsory duty to file for bankruptcy” mode followed by the civil law countries and“the duty to circumvent wrongful trading” mode adopted by the common lawcountries. As to the former, the duty of the directors is more objective, and the contentis explicit, the performance is specific, but to stop the operation as the only way tosafeguard the interests of creditors is too rigid. The judgment of operation andmanagement is delivered to the directors in the latter mode, but the rule is not clearenough, the different subjects may hold different opinion on directors’ behavior. Theauthor believes that china should adopt the mode of civil law countries. The second part is the ontology of the civil liability of the company’s creditors tothe creditors in the vicinity of insolvency. Firstly, the author analyzes the doctrine ofthe nature about legal person and hold that we should make some amendment to the“legal realist” doctrine. Secondly, we analyze the nature and the composition of theresponsibilities, holding that the directors’ of liability to the directors is tort liabilityand its composition consist of four elements, i.e. violations, fault, causation, anddamage. At last, the focus converts to the form and procedure of directors’ duties, inthe form, the liability is direct duty and supplementary liability, as to the accountabilitymechanisms, the creditors should be given the right to appeal directly and the courtshould be given the right to approve.The third part mainly describes the reality of the civil liability of the company’screditors to the creditors in the vicinity of insolvency in china. Firstly, the authorstudies the historical development of this legal institution and finds that the institutionhas experienced a tortuous path from the incomplete to relatively perfect. Althoughthe2007China Enterprise Bankruptcy Law has established the basic architecture ofDirectors’ civil liability to Creditors in the vicinity of insolvency, there are also someshortcomings, the legal regulation system is insufficient, there are still ambiguities inthe legislative content; many loopholes exist in the prosecution procedure of thedirectors’ liability. Therefore, the author believes that the legal accountabilitymechanism is needed to make up for the lack of fiduciary responsibility，the“corporate government" problem and the "family business" problem.The fourth part is about legislative proposals, this part mains on solutions to ourcountry’s problems, based on the basic theory above mentioned and the currentsituation in our country. China has initially established a system of civil liability of thecompany’s creditors to the creditors in the vicinity of insolvency, but in order to meetthe needs of modern economic life. We should draw lessons from the new legislativetrends abroad, Improve the liability institutional system of directors to creditors,establishing a rational and systematic directors’ liability system. Thus, we can givefull play to the role of commercial law in a market economy, and contribute to theprotection of the interests of creditors.