The Logic of Creditor Protection in Company Law——From the Perspectives of the Lack-of-Function of Behavioral Law and the Making-up-Function of Organizational Law
Company creditors,unlike other types of creditors,face special risks which mainly include the risk of insiders using limited liability system to escape debts,the risk of adverse selection,signal cost and insiders'illegal infringement caused by information asymmetry and the risk of spreading negative externalities of corporate behaviors.The rules of behavioral law with contract law and tort law as the main content mainly focus on the remedy after the creditor's interests are damaged,and it is difficult to effectively prevent the special risks of the company's creditors.Such rules of behavior law are also subject to the closed loop of jurisprudence of the independent personality of the company and the principle of privity,thus it is difficult to realize the allocation of liabilities to the insiders after the occurrence of risk.Therefore,it is necessary for the company law to provide creditors with more targeted means of risk prevention and liability allocation at the level of the organizational law.In addition,if creditors with bargaining power want to obtain more targeted and higher-level protection,they must enter into a contract with the company,and the validity and boundaries of their agreed rights are still to be determined by the company law.Thus,we can summarize the three basic functions of company law of protecting creditors:the risk prevention of organizational law,the liability allocation of organizational law,and the interaction between organizational law and behavioral law.The functional order of behavioral law and organizational law in terms of creditor protection is as follows:autonomy of behavioral law-risk prevention of organizational law-liability allocation of behavioral law-liability allocation of organizational law,thus forming a harmonious and consistent system of protection of company creditors.Such system can not only provide a complete and consistent solution to the difficult issue of the protection of company creditors from the legislative perspective,but also be conducive to the interpretation and application of rules on the protection of company creditors in judicial practice.
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