Research On Directors’ Liabilities To The Company’s Creditors In The Vicinity Of Insolvency And Insolvency Proceedings

As far as the protection of creditors is concerned,clarifying the obligations of directors related to the protection of creditors and giving creditors to investigate the responsibility of directors is one of the ways in many countries.This paper focuses on two aspects of the responsibility of directors of bankrupt enterprises to creditors.On the one hand,many measures in the capital system depend on the performance of directors.Directors undertake fiduciary obligations to the company and protecting creditors is an important purpose of the capital system.Therefore,the obligations of directors include the purpose of creditors.Shareholders can file representative lawsuits to protect their own interests under certain conditions,but creditors can not investigate the responsibilities of directors,Therefore,giving creditors the right to directly investigate the responsibility of directors when the enterprise is insolvency or in the vicinity of bankruptcy has become one of the important ways to protect creditors in many countries.On the other hand,when the enterprise is in the vicinity of bankruptcy,the risk faced by creditors increases,and in practice,the misconduct of directors leads to the impairment of the company’s property and the damage of creditors’ repayment.At this time,the traditional way can not provide relief for creditors.Therefore,foreign countries impose the obligations of directors in the period of impending bankruptcy and give creditors the right to investigate the responsibilities of directors,so as to avoid the risky operation of directors in the period of impending bankruptcy.In view of these two aspects,China has no perfect legal norms on the liability of directors of bankrupt enterprises to creditors.This paper focuses on these two aspects.The first chapter is about the current situation of directors’ liability to creditors of bankrupt enterprises in China.The directors in this paper include the company’s senior managers,actual controllers and other people who actually manage and control the company.In the traditional company law,directors are only responsible for the company because of their loyalty and diligence obligations to the company,and the consequences of directors’job behavior are borne by the company.The directors of bankrupt enterprises are responsible for creditors by piercing the traditional theory,which is only stipulated in the capital system of China’s company law,but there are great obstacles in the application of the right given by the law to creditors to investigate the responsibility of directors.In view of the directors’ improper behaviors such as risk-taking operation when they are on the verge of bankruptcy,creditors are unable to find the basis of the obligations of executive directors in China’s existing legal norms.The second chapter is about the theoretical basis of directors’ liability to creditors in bankrupt enterprises.There are two main modes of directors’ obligations when they are on the verge of bankruptcy.One is represented by the United States,which does not apply a separate standard of conduct to directors when they are on the verge of bankruptcy,and still takes fiduciary obligations as the standard to judge directors’ behavior;The other,represented by Germany and the UK,applies a separate standard of conduct to the obligations of directors in the near future,and makes specific provisions on the obligations of directors.The third chapter is about the provisions of the liability of directors of bankrupt enterprises to creditors in the capital system.Capital plays a very important role in protecting creditors.Countries represented by Germany and the United States attach great importance to the role of directors in the capital system.These countries have a broad concept of "illegal payment and distribution to shareholders" to comprehensively stipulate the responsibilities of directors,and provide creditors with various remedies to investigate the responsibilities of directors.In comparison,China does not attach great importance to the responsibility of directors.Although the new company law（Revised Draft）strengthens the responsibility of directors in capital enrichment,it does not establish a broad concept of"illegal payment and distribution to shareholders".The fourth chapter is a comparative study on the liability caused by the obligations of directors when they are on the verge of bankruptcy.There are different theories of the creditor’s rights and the scope of compensation for the creditor’s rights in different countries.The fifth chapter is the perfection of the directors’ liability to creditors of bankrupt enterprises in China.Article 190 of the company law（Revised Draft）shows the orientation of breaking through the theory of "legal entity".This paper holds that the special tort liability norms of directors of bankrupt enterprises to creditors can be established in the bankruptcy law system,and the content of directors’ obligations during the period of impending bankruptcy can be based on the interpretation of duty of diligence.Through the research of this paper,this paper aims to provide a new idea for the establishment of bankrupt enterprise directors to bear responsibility for creditors in China.