A Research On Directors’ Liability To Creditors During Substantial Bankruptcy

In the context of the rapid rise of the global bankruptcy rescue culture,it has become a business consensus to act early on corporate crises.Substantial bankruptcy is refers to the company’s business has emerged bankruptcy reason,but the company has not yet entered the judicial bankruptcy proceedings,it is special in the development process of the company: on the one hand,the company has been bankrupt crisis during the period,but the court’s intervention is not yet apparent,the crisis has not been amplified by judicial proceedings,is the "golden period" of saving trouble company;On the other hand,the insolvent financial condition of the company makes the creditors lose the guarantee of the company’s capital,and the expected interests of the creditors will be directly affected by the operation decisions of the directors.In view of the absolutism of the company organ theory in China,the direct liability mechanism of directors to creditors has not been established.However,when the company is insolvent,if the company continues to bear the tort liability of the directors to the creditors during this period,it will undoubtedly give the creditors a "blank check",which will not only make the creditors into the dilemma of rights protection,but also have a negative impact on the market transaction order.Comparative studies show that many countries outside the region have established the liability mechanism of directors to creditors when the company falls into substantial bankruptcy in different forms.In our country,from the angle of necessity,as creditor capital plays an increasingly important role in corporate capital,it is the general trend to strengthen the protection of creditors during substantial bankruptcy;from the angle of feasibility,with the breakthrough of the theory of relativity of creditor’s rights,the revision of the theory of directors’ fiduciary duty and the expansion of the theory of corporate social responsibility,the legal basis for constructing the liability mechanism of directors to creditors during substantial bankruptcy is becoming more and more sufficient.On the strength of the current condition of corporate governance in Our country,we can use the method of interest measurement to construct the liability mechanism of directors to creditors during the period of substantial bankruptcy.After a comprehensive comparison of various foreign legislative styles,it can be found that the "principle + exception" legislative mode is most suitable for our national conditions.On the one hand,the principle that directors should be held responsible for their business behaviors during the period of substantial bankruptcy should be established,so as to limit their improper behaviors at this stage.On the other hand,it is also vital to set up typed exemption grounds for directors,directors can be exempted from liability if they take the initiative to carry out risk disclosure,restructuring hearing or debt negotiation,so as to ensure that their reasonable decisions will not be affected..This kind of legislative design can realize the dual goals of improving the level of corporate internal governance and protecting the interests of creditors,and can provide a new idea for optimizing the business environment in China.