The expansion of power and the nature of pursuing profits lead to the company’s directors’ arbitrary decision-making or abuse of power,which directly or indirectly infringes on the legitimate rights and interests of creditors.Facing the infringement of directors on creditors,the company law does not give effective protection.Most theoretical scholars deny the personal responsibility of directors with the theory of corporate organ,and most judges also hold a conservative attitude.This leads to no way or fruitless complaint from creditors,and the infringement of directors has not been regulated and curbed.Therefore,in order to safeguard the legitimate rights and interests of creditors and promote the compliant operation of enterprises,it is necessary to clarify the provisions of directors on the civil liability of creditors.Article 190 of the latest revised draft of the company law also defines the joint and several liability of directors,which is one of the highlights of the revised draft.Starting with the current situation of legislation and practice,this paper combs and analyzes the existing relevant legal provisions,and points out the deficiencies of the provisions on the civil liability of directors to creditors in legislation,including the narrow scope of directors’ responsibility,the lack of identification standards and the unclear distribution of the burden of proof.On the basis of understanding the practical needs of improving the director’s responsibility,further analyze the rationality of improving the director’s responsibility in theory.In theory,there are two views,that is,the theory of no liability and the theory of joint and several liability.Taking the correct understanding of the theory of corporate organ as the breakthrough point,we understand the rationality of directors’ personal compensation liability and put forward the corresponding theoretical basis.On the premise of demonstrating the necessity and rationality,this paper uses the method of comparative analysis to compare the relevant provisions and precedents of typical countries in civil law system and common law system,and puts forward reasonable suggestions for our country.First of all,we should add general provisions that can regulate the infringement of all directors in practice.At the same time,clarify the applicable elements of personal responsibility,including subjectivity,behavior,causality and result.Secondly,make it clear that directors are the main body of the burden of proof,and comprehensively identify the responsibility of directors with the standard of the combination of subjective and objective.In addition,the reasons for exemption should be specified,such as the principle of business judgment,behavior compliance or the objection raised by the director can be used to protect the legitimate behavior of the director.Accordingly,it provides a reasonable legal scheme for protecting creditors and standardizing the behavior of directors... |