The Form And Commitment Of The Managers Of The Bankrupt Enterprise To The Shareholder’s Liability

The enforcement of Enterprise Bankruptcy Law witnessed the foundation of modern enterprise system., making rational exit of market entities, appropriately balancing the interests of every side, fairly dealing with the relationship of fairness and efficiency. Rights of shareholders are mostly covered in the Law of Company, such as the right of shareholder direct litigation, the right of shareholder representative litigation. Thus the Law of Company can almost be referred to as ‘Shareholder’s rights and interests protection law’. Relatively, rights of creditors are mostly covered in the Law of Enterprise Bankruptcy, such as the right of choice and exchange of Bankruptcy Administrator, the right of superintendence of Bankruptcy Administrator, the right of passing the allocation plan of Bankruptcy estates, the right of passing Bankruptcy reorganization plan, the right of passing Bankruptcy settlement agreement, the right of revocation, the right of fetching, and the enforcement of Exemption right. Likewise the Law of Enterprise Bankruptcy can also be referred to as ‘Creditors’ rights and interests protection law.’ Operators’ responsibility for shareholders is emphasized in the paper, the point is how to protect the rights and interests of shareholders in the Bankruptcy procedure. Whether rights of shareholders enforced by the Law of Company such as the right of shareholder direct litigation, the right of shareholder representative litigation, can be enforced in the Bankruptcy procedure? If not, what stands in the way on thesis and in practice? What can we do to solve the problem?The first chapter is about the background of the paper, and on the proposal of the question of how to protect rights and interests of shareholders in the Bankruptcy procedure. The chapter also circumstances the concept of Operators, the subject of responsibility, pointing out that it has the same meaning as the concept of management.The second chapter describes the meaning of Duty of loyalty and Duty of diligence on Operators in the Company procedure. Furthermore, what kind of responsibility should Operators who betrayed Duty of loyalty and Duty of diligence pay is estimated in this chapter. The chapter also analyses the relationship between shareholders and operators, bringing to light the relationship of commission contract of Civil law between them.In the third chapter, through case analysis, the chapter points out that in judicial practice in China, the Operators, who betrayed Duty of loyalty and Duty of diligence, are pursued by Civil tort liability. Then the reason of for whom should Operetors pay the responsibility is elaborated and the answer is shareholders. And through case analysis, we know that in Bankruptcy procedure, to pursue Operators by Civil tort liability for the benefit of shareholders lacks support of right of claim.The fourth chapter first bridges the principles Civil law and Bankruptcy law, then elaborating the limitations of Business judgment rule applied in the pursuing of Operators’ liability for breach of contacts in Bankruptcy procedure, proposing methods to revise the rule. The chapter advises that besides judges, experts on management can be introduced into responsibility determination of Operators who are responsible for the bankruptcy of the enterprise because of their operational negligence. The chapter also tells how much should operators, who are responsible for the bankruptcy of the enterprise pay and who would at last own the compensations for damages.