The Study On The Action Form Of Supplementary Liability In Corporation Law

The supplementary liability litigation in corporation law is a special type of the corporate capital litigation. Legislation set the“ penetrated”responsibility for maximizing the protection of the creditor's interests.Because substantive norms and procedural rules don't have specific provisions for the action forms of supplementary liability,the action form is diversity and subjectivity in practice,and it go against the protection of the rights of the parties.This paper based on the empirical research as a starting point, combining the theory of supplementary liability entity and the basic theory analysis of procedural law,in order to clarify the choice of its action form,improve legislative procedure of supplementary liability litigation and related legislative.The body of this paper including about 30,000 words, is divided into four parts:Part I:Putting forward problems.In practice, the court has different judgment on the legal relationship between the creditor, the company and the shareholder.There are different ways to locate the procedural status of the shareholder. In practice,the action form of supplementary liability is diversity.Whether the shareholder' s interests could be against the creditor's right of prosecution, there are different theories.This controversy further lead to the different viewpoints about the creditor's way of prosecution.Part?:The theoretical basis of the action form of supplementary liability in corporation law.The choice of the action form of supplementary liability in corporation law is based on the identification of the object of action.Taking different identification standards to identify the object of action will produce different judgments.According to the traditional theory of the object of action, the creditor, the company and the shareholder have different legal relationships each other.Therefore, the creditor has the right to sue company and shareholder separately.As a kind of substantive right, Beneficium excussionis still couldn ' t be commensurate with the right of prosecution of creditor.When creditor sue the company separately, the company should be asked to participate in the proceeding for guaranteeing the supplementary liability of the shareholder.The choice of the action form of supplementary liability in corporation law should fit for the goal of the protection of the creditor's interests, the procedural protection of the parties and the litigation benefit.Part?:Type analysis of the action form of supplementary liability in corporation law.According to combining with the entity content of supplementary liability and the basic theory of litigation procedure, classifying analysis the separate action,the tripartite action, the joint action.The choice of the action form of supplementary liability is the separate action and the joint action.Because the types of joint action in legislation of China and types of joint action in theory all couldn't be compatible with the supplementary liability, in order to respect for the creditor's right of prosecution and avoid conflicts ruling,the similar necessary joint action may be a reasonable choice.Part ?: Application of the action form of supplementary liability in corporation law.Syncretic certainty is the basic condition in the similar necessary joint action.If expanding the scope of syncretic certainty so as to include the situation of logical syncretic certainty,it will expand the applicable scope of the similar necessary joint action.Then,the supplementary liability litigation in corporation law could be included.Because the supplementary liability litigation involving two different objects of action, the application of “mirror effect”can make the effect of the judgment about the object of action in the first litigation extend to the second litigation for syncretic certainty. From the perspective of proceeding,when the company and the shareholder form the joint action,the litigation behaviors about the credit and debt taken by them shall effect to the whole. when the creditor sue the shareholder separately, the judge should ask the company to participate in the proceeding.