On The Tort Liability Of Company Promoter

The promoters play a decisive role in the process of the company's incorporation,their legal status can be understood by two ways: on the one hand,on the stage of company establishment,promoters can be regarded as an interim partnership for the purpose of establishing company,each promoter regarded as the agent entrusted by all inventors,in the establishment of stock limited company,the principals cover the subscribers.On the other hand,the promoters have the power to control the preparatory work and property in the process of the company's incorporation,rights and obligations incurred from the promoters ' juridical acts will be borne by the company to be established,that is tally with the essential connotation and power nature of the agency,in consideration of the value of fairness and efficiency,the promoters can be presumed as the interim agent of the company to be established.Base on the legal status of interim agent,the promoters shall bear the fiduciary duty to company and other shareholders that include s the duty of loyalty?the duty of diligence and the duty of care,acting for the interest of company and other shareholders.Since the fiduciary duty belongs to the lawful duty,when the promoter violates the fiduciary duty,he shall be subject to the tort liability because he violates the lawful duty.Therefore,if the company and other shareholders' interest are injured in the course of company's establishment by intention or due to the negligence of the promoters,the promoters shall be liable for making compensations to the company and other shareholders.The application of tort liability is not only necessary to show where there is damage,there is compensation,but also an effective way to solve the problem of the abuse of power by the promoters in the stage of company establishment,through this way the shortcoming of present company in regulating the promoters can be made up.As for the constitutive requirements of promoters' tort liability,because the element of fault absorbs the element of illegality,and the promoters' fault can be objectively judged by the violation of fiduciary duty,so the constitutive requirements of tort liability consist of the violation of fiduciary duty?damage and causality.To judge whether the promoters violate their fiduciary duty in detail,the connotations of three duties should be considered adequately.In the analysis of damage,the key is the determination of substantial loss to the property of the company and other shareholders,which includes the reduction of existing property and the losses in acquirable interests.The causality theory under the American-British pattern provides a better way to judge the causality between damage and violation of fiduciary duty,it comprises two steps respectively called virtual causality and legal causality.But beyond that,the particular situation in juridical practice should also be taken into account.For the purposes of protecting the profit-making demand of company and giving full relief to company and other shareholders,the promoters shall be subject to the tort liability and compensate all the losses,but the rule of gains offset the losses always becomes the limit of extent of compensation.Otherwise,though the company's interest was injured in the course of its establishment due to the negligence of the promoters,the promoters can be exempt from liabilities via the resolution of shareholders' meeting or shareholders' assembly unless that will cause harm to another person.It's freedom of company to exempt the promoters' responsibility,in this way the burden of promoters can be reduced and there will be more people participating in company establishment.