On The Legal Regulation Of The Qualification Of Indebted Director In China

The legislative purpose of the company directors ' qualification is to protect the safety of the company's property and shareholders ' rights,and to protect the interests and security of the company's creditors.The revised company law of our country in which a special chapter stipulation has been made on the qualifications of the directors of companies,has made significant progress,but there is still lack of necessary and specific regulations on the reason for its liabilities,the amount of debt,In addition,provisions on the legal effect of not meeting the qualifications,the qualification defects after the removal procedures,and other issues are not yet perfect.It is very important to further examine the provisions of this article and distinguish the effect of the liability directors ' behavior without qualification at different stages,and to establish the corresponding removal procedure.The current "Company law" only stipulates that "individuals who owed a large amount of debt shall not serve as directors of the Company",however,there is no further specific regulations on the cause and amount of the debt,therein on one hand it makes no difference in indebted for different reasons,on the other hand does not specifically determine the range of large amount of the interval,practical operation mixed.In the Bankruptcy Act of Japan,"an author who increases the loss of a creditor on the grounds of profit or damage to the creditor,and is sentenced to a fine of less than 10 years or less than 10 million yen,does not act as a director of the company,which to some extent,considers the cause of the debtor's debt,not all debts.Therefore,in our judicial practice,we should also consider the reasons for the liabilities of the indebted directors,and balance the protection of directors and company interests.For large amounts of judicial practice,a further reflection is made through searching the Beijing University Magic Weapon,the Chinese referee document network further ponders,taking "the individual negative amount debt maturity outstanding" as the key word in the above database.It has obtained 56 judgements,among which only 11 according to this provision directly or indirectly thinks the qualifications of company directors,supervisors or senior managers are not in conformity(others are insufficiently substantiated or cannot be identified as individual debts without support of the court).However,there are large differences in the division of the amounts,which are determined to be 330,000,more than 8 million and more than 19 million respectively,and the perpetrator is a dishonest person who breached the law subjected to execution in the list(the list of information of The national court is published by the executor and the query platform),and there was no uniform standard on the large amount.According to the judicial practice of our country,it is doubted whether we can synthetically consider the size of the company,make a comparison of the large interval of the court's lawsuit,and give the company's articles of incorporation to detail the right of the interval.In contravention of the company law,the election of a indebted director as a director is invalid,but it does not specify how the indebted director has acted.In fact,when a director is found to be in the position of "a large amount of debt due to maturity outstanding",and the director may has performed the duties of a director,in such case,is the indebted Director's conduct valid? Is the resolution of the board still valid?At present,some countries' company law does not adopt removal way to directors and supervisors of qualification defects,for example,where France's commercial company law does not have the legal quantity shares of directors,where it does not correct their situation according to law within 3 months,"it is deemed to resign according to authority".The 146 th article of our company law stipulates that "the Company shall discharge its duties when the directors,supervisors and senior managers appear in the first paragraph of this article during their term of office." "According to the literal interpretation,the company should discharge its duties,it shall be" of course removal ",that is,if the circumstances set out in the first paragraph of this article,the Director shall be disqualified.Because the legal qualification is the basic stipulation for directors in the company law,the procedure of "course removal" shall not be changed according to the will of the corporation,shareholder or other persons.However,whether the "removal" is consistent in the arts and practice is open to question.In practice,the removal of course should also perform certain procedures,resulting in external publicity,based on our country,the company and the director being the appointment relationship,then the termination of the relationship determined by the unilateral shall take effect.As directors appear "the amount of personal debt due to the maturity of the outstanding" situation,not to be a company director is the mandatory provisions of the law,the Company issued a written statement can not only produce publicity,but also make shareholders and other companies with a stake informed easily.If the State administration and the judiciary have declared their removal to the indebted directors,or the removal conditions have been satisfied,the company still actually retains the appointment with the indebted director,at this time,when except that the company and the indebted directors should be given the punishment,the cause of damage to the third person civil liability issues should also be considered.The legal effect of a indebted director representing the company and the third person during his tenure is not stipulated.This should be divided into two types of analysis: first is that the company has not found the directors' liabilities,and allows them to continue to represent the company in the case of the company's authority,in which case the director is objectively in debt,but has not been removed;second,the company has been through the corresponding procedures or with the corresponding publicity of the conduct of the performance of the removal.However,the indebted director still represents the company legally acting in the capacity of Director.