Research On The Civil Liability For The Creditors After Defective Equity Have Transferreda

The process of globalization has prompted the company’s prosperity, the company as animportant leading force of economic development has made great contributions for thedevelopment of society. And in the development of the system of the company, theapplication of the limited liability system enables companies to get the leap. As thecompany expands and social capital are flocking to the company, or in the form of creditor’srights, or in the form of equity. But both are closely linked. The establishment of companyis bound to the existence of defective capital contribution. While the existence of defectivecapital contribution, which affects the interests of creditors and the social stability, even thehealthy development of the company.Only do analyze the conflict of interest between the creditors and the parties of defectiveshare transferring. Analyze domestic related literature data, various scholars argument,theproblem of the company during defective share transferring. Using inductive and deductivereasoning to analysis the nature of the responsibility on transferor, assignee, the othershareholders when a company is established. Only clear responsibility nature, can in thesubsequent responsibility to all the famous.The existence of defective equity is a kind of threat to the creditors. It’s creation andsubsequent is also a threat to the assets of the company, threat integrity of the company. Theassets of the company is a secure to the creditors, if the assets of the company are damaged,undoubtedly, the harm to the creditor is the most serious. So, When seeking the balancebetween creditors and company interests, should improve the protect of creditor’s interests.The new inpublication of "provisions of the Supreme People’s Court on some issuesconcerning the application of the people’s Republic of China Company Law’(three) onlylimited to protect rights when defective equlity transfer to creditors. not generalization, butprotect the interests of creditors from the overall level. So, based on the "provisions of theSupreme People’s Court on some issues concerning the application of the people’s Republicof China Company Law’(three) to debate how to more transparent and more completely toprotect creditors interests. The main point of the text is that, when the defective equitytransfer, the transferee on whatever subjective mentality should bear tort liability joint,while emphasizing the company shareholder’s joint and several liability for tort. Theexpansion of the creditor can be traced back to the main body scope, strengthening theprotection of the creditor.The protection of creditor has been the core problem of company law, creditors of thecompany has the characteristics of large groups, wide distribution. The protection of theinterests of creditors, optimizing capital structure, has the vital significance to the social and economic development and stability. Defective equity transferee company creditors in amore active role with respect to view risks. But creditors’ legal status relatively passive, canonly be based on external information measurement and control risk. So, creditors andequity transferee’s status is not the same, the assignee is more to occupy a favorableposition. When the assignee assume the corresponding responsibility, the transferee may bebased on equity transfer agreement with the seller to safeguard their legitimate rights andinterests. This approach is more conducive to the creditor to protect their legitimate rightsand interests, also not let people who really responsible escape. And for other shareholderswho established the companies, to the company’s capital structure, its itself has the mutualguarantee obligations, breach of mutual guarantee obligations causing damage to thecompany’s property shall be jointly and severally liable to the creditors of the company, thesame shall be jointly and severally liable.