New Liabilities for Directors and Senior Managers in China
Under the PRC Company Law (2006), directors and senior managers of a foreign-invested, Chinese-registered company have the duty to comply with laws, regulations and the company’s articles of association, and owe the company loyalty and diligence. Moreover, they may be liable for compensation to the company if they cause it harm. In principle however, they will not bear civil liability towards third parties (such as the company’s creditors) for their actions on behalf of the company.
In recently adopted rules, however, the Supreme People’s Court has impacted this well-established principle. For certain activities relating to the non-contribution or withdrawal of registered capital, third-party creditors may directly claim against directors and senior managers. This opens a door for creditors to pressure companies and their managers to fulfill a company’s debts; it also emphasizes the importance for directors and managers to establish their duties and the limitations thereto, especially if they are foreigners with little direct influence on the shareholder or its business in China.
The Provisions on Several Issues concerning the Application of the Company Law of the People’s Republic of China (III) (“Interpretations”), which took effect on 16 February 2011, provide new interpretations on various articles of the PRC Company Law. Under Article 13, where an investor fails to (fully) contribute its registered capital, the company or the company’s other shareholders may claim against that investor in court. Additionally, the company’s creditors may also claim against this investor directly for the company’s debts, to the extent of the principal and interest on the capital not yet contributed.
However, if the investor has failed to contribute to an approved increase in registered capital (as opposed to the registered capital during the initial set-up), then the company’s creditor can also claim directly against the company’s directors or senior managers. These shall assume corresponding liabilities where their breach of the obligations of loyalty and diligence has contributed to the investor’s failure to pay-up the required capital. After assuming such liabilities, the directors and managers will then have recourse against the non-contributing investor.
The meaning of “corresponding liabilities” – i.e. in how far an investor’s failure to contribute registered capital can be deemed the result of breach of a director / manager’s duties of loyalty and diligence – is not clarified. In any case, the Interpretations suggest that directors and managers should pay more attention to a company’s capital contribution issues, and closely monitor the investor’s performance. Where the investor fails or threatens to fail on-time contribution of increased registered capital, evidence that directors and managers have made strenuous efforts to secure the capital contribution, e.g. in the form of notices or Board Resolutions, could be useful to mitigate their liability.
The Interpretations also contain a number of articles on how to deal with investors and nominee investors, when they illegally withdraw registered capital that has already been contributed – a practice which is not uncommon in China. If an investor withdraws registered capital without due approval, then the company, its other shareholders, and the company’s creditors all have a claim against such an investor for return of the principal and interest. More importantly, they also have the choice to claim against those directors and senior managers that have provided assistance in withdrawing the contributed capital. In other words, directors and senior managers may be asked to assume joint and several liabilities for those debts of the company that cannot be cleared, which they have provided assistance.
The Interpretations could have a deep impact on the position of directors and senior managers of Chinese-registered companies. For example, traditionally many foreigners have been appointed as director without taking an active role in monitoring the company’s business, performing more like a nominee director than one with actual influence. This has been acceptable as long as the risks to these persons were minimal – no risk for direct civil liability towards third parties for the company’s activities and the activities engaged on behalf of the company, and limits to the risks for criminal liabilities (especially relevant for the legal representative).
This initiative of the Supreme People’s Court however introduces the possibility of claims by third parties directly against a company’s directors and senior managers. As a result, individuals may be more reluctant to take on a director position or senior manager position in a Chinese enterprise. In any case they may (and should!) insist on very clear limits to their duties and authority, for example in a Shareholder’s resolution attached to the appointment letter (for directors), or a Board of Directors resolution attached to the employment contract (for senior managers). This remains the best way to avoid potential civil and criminal liabilities.
For foreign companies operating in China or doing business with Chinese counterparts, however, the Interpretations create another interesting possibility. One major challenge in litigation in China is the enforcement of judgments if the debtor is relatively small and has few assets. Pursuing a counterpart’s investors for illegal withdrawal of registered capital has always been an option, but in practice this has been used sparsely due to the difficulty to prove illegal withdrawals. The real problem is that many Chinese companies do not feel much (financial) pressure from their creditors: their owners often prefer to let the company go bankrupt then to settle their debt. Making directors and senior managers directly liable thus gives creditors another choice. By filing a lawsuit against the individuals behind the company, and where possible freezing their personal assets pending the outcome of the dispute, creditors will be able to put much more pressure on these individuals to effectively force a resolution of the dispute.
Note: Please go to www.rplawyers.com for the relevant articles of The Provisions on Several Issues concerning the Application of the Company Law of the People’s Republic of China (III) adopted 27 January 2011, effective 16 February 2011.
Mr. Maarten Roos is the managing director of R&P China Lawyers, a Chinese law firm that provides practical legal solutions to foreign businesses in China (www.rplawyers.com). Maarten advises and represents European and US companies on investment projects and corporate restructuring, commercial transactions, IP protection and dispute resolution in China. Maarten is the author of Chinese Commercial Law: A Practical Guide (Kluwer Law, 2010), a popular guide on the legal and practical aspects to doing business in China, is fluent in Chinese, and has been on the list of Asialaw’s Leading Lawyers since 2008. He can be reached at +86 2161 738 270 or by email at firstname.lastname@example.org
Ms. Chen Yun is a PRC licensed lawyer working for R&P China Lawyers, a Chinese law firm that provides practical legal solutions to foreign businesses in China (www.rplawyers.com). Yun advises and represents foreign companies on foreign direct investment, international trade, general corporate matters and employment law. Among others, Ms. Chen has assisted European and American companies to establish a presence in China, to design and adopt systems of corporate governance and to manage employment and commercial relations. She is also frequently involved in resolving employment and commercial disputes, and can be reached at +86 2161 738 270 email@example.com.