A Study On Directors' Liability To Creditors Under The Circumstance Of Shareholders' Flawed Capital Contribution

The current Company Law and relevant judicial interpretations clarify the duty of care that directors should bear,and the directors shall bear the responsibility to creditors when the shareholders’ capital contribution is defective due to the violation of this provision.To strengthen corporate governance,the Company Law（Revised Draft）also further emphasizes the responsibility of directors to perform their duties of care and maintain the company’s capital adequacy.Under the current legislative trend,it is realistic to analyze the directors’ responsibility,clarify the ambiguities in the judicial interpretation on the liability of directors,and equal protection for ownership of the company’s property and the creditor’s claims.The article consists of five parts.The first part summarizes the existing norms of directors’ liability to creditors in the case of shareholders’ defective capital contributions,clarifies that shareholders’ "failure or failure to fully perform capital contribution obligations" and "withdrawal of capital contributions" shall be included in the situation of "defective capital contributions",and analyze the legal value of the norms for balancing the internal and external interests of company and promoting corporate governance reform.The second part sorts out the cases in current judicial practice by type,and summarizes the main issues in the liability of directors to creditors in the case of defective capital contributions by shareholders.By sorting out a series of cases in which the directors did not supervise the shareholders to contribute capital in a timely manner and the positive actions of assisting shareholders to withdraw their capital contributions to harm the interests of creditors,it can be found that there are still problems such as unclear nature of directors’ responsibilities,imperfect standards for determining liability,and confusion in the way of liability.The third part,combined with the views of scholars,analyzes the nature of directors’ responsibilities.Compared with the "tort liability theory" proposed by the academic circles,the performance of the "statutory liability theory" is general,and it fails to achieve the protection of the interests of relevant entities in a more explicit way,and the nature of tort liability of directors infringing on the interests of creditors should be determined in conjunction with the civil law theory of third party infringement of creditors’ rights inside and outside the region,and it is appropriate to define it as a special tort.The fourth part,under the definition of the tort attribute of directors’ liability,focuses on the determination of directors’ liability to creditors in the case of shareholders’ defective capital contribution.Based on the rules on the burden of proof in the Civil Procedure Law,derives the principle of presumption of fault attribution applicable to the liability of directors in Substantive Law.In the specific composition of liability,in addition to the existence of infringement by directors,indirect infringement of creditors’ rights and interests,and indirect causal relationship in terms of subjective elements involving directors,it is necessary to exclude the subjective fault of general negligence when the directors have not called for shareholders’ capital contributions,and in the case of directors as the contributors to the withdrawal of capital contributions,the subjective elements should be limited to intention,and the directors need to prove that they are not at fault.The fifth part mainly studies the way in which directors bear responsibility under shareholder’s defective capital contributions.Since in the context of the shareholder’s "failure or failure to fully perform the capital contribution obligation",the judicial interpretation only stipulates that the directors bear "corresponding liability",combined with the understanding of various scholars in the field of civil and commercial affairs on this issue,it is clear that the directors should also delineate the way of bearing supplementary liability based on their own fault and the reasons for the damage caused by the creditor’s inability to remedy the creditor’s claim;in the situation of directors "assisting in the withdrawal of capital contributions",directors should not be in the same first-order of responsibility as companies with direct creditor-debtor relationships,so it is more suitable for directors to bear supplementary joint and several liability,and they should not be liable for the company’s inability to pay off debts beyond the scope of the defective shareholder’s withdrawal of capital interest.