Company Creditor Subrogation Of Litigation Of Shareholders

Before the implementation of the third judicial interpretation of Company law,although the creditors through litigation requesting shareholder responsibility occursfrom time to time in the judicial practice, China is still no provisions of the exercise ofthis right in terms of creditors. The implementation of the third judicial inetrpretationof Company law further improves the system for the protection of creditors. The lawexpressly, needs the theoretical support, so，our socialist legal system can becoordinated. Over the theoretical basis of creditors claiming shareholder responsibility,the academic circles has two points of view： right of subrogation and the third partyinfringement. On the third judicial interpretation of Company law, the creditor’ssubrogation theory is more suitable as a basis. On the other hand, considering thesocial and economic effect, the creditor’s subrogation theory with respect to the thirdperson tort theory is more conductive to themaintenance and protection of creditor’srights. In judicial practice, it exists mainlyin the following circumstances that thecreditors claim shareholder responsibility:the general existence of debt, theshareholders slight defect investment, theshareholders withdraw the contributedcapital. Once the creditors on the litigation of subrogation win，the shareholders willprovide creditors with a complementary relief within the debt, contributive flaw, andwithdrawal of funds. Besides，the other shareholders, directors, senior managementand someone else who help or have oversight responsibilities towards the shareholderswho have troubles, need to bear joint and several liability to creditors. In the operationof judicial practice, the creditors of the company is in the position of accuser,shareholders is in the position of defendant, and the company as the third party withoutindependent claim may also participate. According to the general principle of litigationfor right of subrogation, creditors need to ifle a lawsuit in the location where theshareholders belong，and the litigation request must be defined in the creditor’s rightsand the compan’ys rights.