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Improvement of Protection of Creditors’ Interests of the One-person Company in China

Author: WangPeng
Tutor: YueCaiShen
School: Southwest University of Political Science
Course: Legal
Keywords: one-person company creditors’interests legal protection denial of the personality
CLC: D922.291.91
Type: Master's thesis
Year: 2011
Downloads: 88
Quote: 0
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Abstract


The one-person company is a special company form developed in the 20th century, initially based on a factual rather than legal company form appeared in people’s vision. The one-person company is a major breakthrough to the traditional theory of corporate law and played an important role in promoting the economic and social development and therefore, has gradually been recognized by the legislation of various countries. On October 27, 2005, the Tenth National People’s Congress adopted an amendment to the Company Law the People’s Republic of China, increased provisions on one-person limited liability company and recognized the legitimacy of a one-person limited liability company in the legislation. This initiative conforms to the world development trend of the legislation of various countries, and will encourage investment and development and improve the company’s legal system. However, the governance structure of the one-person company has its own particularity, and conflicts with the traditional theory and legal systems of the company law and poses certain threat to the creditors’interests. The amendment to the Company Law in 2005 made brief provisions on the one-person limited liability company with just seven clauses. Although the amendment makes exploratory efforts to protect the creditors’interests in a certain degree, the amendment fails to well protect the legitimate interests of the creditors because of its relatively simple and rough legislation, and insufficient operability. This paper, under the 6-year implementation of the new Company Law and from the perspective of the legal protection mechanism for the one-person company, endeavors to propose suggestions for the improvement of the legal system for the protection of the creditors’interests through the analysis of the legal protection system for the creditors’interests of the one-person company, the defects and the causes for such defects.Apart from introduction and conclusion, this paper is composed of three parts:The first part mainly analyzes the provisions of the new Company Law on the protection of the creditors’interests of the one-person company and proposes the provisions of the new Company Law thereon from five aspects: the new Company Law makes provisions on the incorporation amount of the one-person company, the maximum capital system of the one-person company, the necessary disclosure system for the one-person company’s information, the financial system and supervision system and the denial system of the personality of the legal person of the one-person company.The second part mainly elaborates the defects of the protection of the creditors’interests of the one-person company and the causes therefore and proposes the few clauses on the one-person company in the new Company Law and the rough legislation technique and some imperfection in the protection of the creditors’interests of the one-person company, mainly including: the default of the sponsor’s responsibility system, the defaulted provisions on the“subsequent one-person company”, the imperfect governance structure, insufficient financial supervision, unclose design of the denial of the personality and insufficient operability.The third part proposes several exploratory suggestions for the improvement against the defects of the one-person company system for the protection of the creditors’interests in the new Company Law: to regulate the sponsor’s responsibility system, to improve the internal governance structure of the one-person company, to improve the financial system of the one-person company and to improve the denial of the personality of the legal person.

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CLC: > Political, legal > Legal > Chinese law > Economic Law > Corporate law, company law
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