On Legal Protection Of Creditors Of One Company

One-man company (hereinafter referred as OMC) is a new form of economic organization, in which investors enjoy the absolute control with limited obligation. This kind of company is prevalent nowadays due to its contribution to maximizing investors' profits and stirring their enthusiasm. After greatly revising the ongoing Corporate law of PRC, we brought in this form of company in 2005. With a great impact on the traditional legal system, it causes many problems both in theory and practice especially in the legal right of creditors. The thesis, based on present corporate law, analyzes credit of One-person company system and several reasons why the protection of creditors' legal rights is in trouble. Further more, we bring up several suggestions for improving the credit system of OMC, hoping to make contribution to protection of OPC creditors.The thesis can be divided into three parts.Part one puts forward our definitions of four concepts: OMC, OMC creditor, corporate credit, and corporate credit law which are still in controversy nowadays in law circle so as to make clear the research object. At first, we define the OMC, raised by new Corporate Law that is the limited obligation corporation of one natural person shareholder or one legal person shareholder. Secondly, we points out clearly creditor of OMC, active and passive, which dose not incorporate legal creditor. Thirdly, we analyze the corporate credit at dynamic and static levels, which are complementary. Dynamic level stresses the will of keeping promise, including the basic ethic, information collection and publication of OMC; static level, competence of keeping promise, consisting of asset condition, managerial construction, limited and exclusive obligation. The forth, we cleared about the company credit legal regime's connotation, and pointed out the present law of corporation has some credit law, besides to the company constitutive law and the company behavior method stipulation. This writes for the later word to the company credit legal regime's consummation, and is also this article foothold. At last, we lay emphasis on the importance for legal rights of OMC creditors which, together with corporate structure and action. Part two analyzes the ongoing OMC legal system pointing out its drawbacks in protection of OMC creditors. Firstly, OMC legal system, based on traditional corporate law that takes too much note of profits and the interests of shareholders and nature of community that can not explain OMC sole shareholder, can not be well applied to the new situations. Secondly, OMC is independent and has limited obligation. Those two aspects put all the responsibilities and risks on to creditors. Thirdly, the shareholders are prone to infringing upon rights of creditors due to simple managerial construction with sole shareholder, without division of ownership and management, no effective supervising organism. Fourthly, fossilization of capital is incompetent to demonstrate OMC's asset condition and competence of keeping promise as to weak accounting and calculation. Fifthly, shareholders and creditors do not have access to sufficient information because of weak information publication and creditors do not have access to the credit condition of OMC by weak information collecting system.Part three puts forward several suggestions, designated to the second part, for bettering ongoing corporate law. Firstly, we revise the basic ethic in to equality, justice and protection for those who are concerned to ensure creditors'legal rights and draw a clear demarcation between company and shareholder to explain OMC's nature of no community. Secondly, we bring in the negation of company personhood, in case of abusing limited obligation and independent ownership. Thirdly, we will improve OMC managerial system by differentiating OMCs'scale and strengthening legal system of board, supervising committee and concerned persons. Fourthly, we attempt to better OMC's capital system at two stages as to foundation , and operation. Fifthly, we will ensure credibility at calculation stage by "Deep-Rock Doctrine" system. Sixthly, we will enforce credit transparency by strengthening publication registering and engaging secretary.