Juridinio asmens valdymo organų pareigos kreditoriams problema

Abstract

The main argument of contemporary researchers for not supporting directors’ liability to creditors is that creditors’ rights are ensured by efficient protective measures. Accordingly, in this article it was attempted to evaluate whether these measures are satisfactory enough to neutralise negative effects of limited liability.
The article briefly summarizes, why neither compulsory nor voluntary insurance of company’s civil liability is unable to absorb all the costs of unsuccessful operation and thus to solve the problem of limited liability, provides the concept of company capital and discloses the insufficiency of the range of legal measures to protect company capital. Also attention is paid to the accountability of the management personnel. Though this type of accountability is oriented primarily to ensure the shareholders’ rights, its significance is unquestionable also in securing the interests of creditors through general safeguard of legal entity’s continuity and profitability. The accountability of directors to shareholders is understood in a wide sense, namely as managerial risk aversion, and encompasses not just legal liability for mismanagement. One of the most significant protectors encouraging managers to restrain from too risky projects is provided by the market mechanism itself. The managers as participants in specific labour market are vulnerable because the success of their investment is inseparable from the success of the company in which they work. Members of management bodies are investing their human resources and have a particular interest in not taking the risk related to their workplace continuation. Nevertheless, managers take risky steps when motivated or forced by shareholders. Since the benefit of misusing limited liability companies to shareholders is obvious only when the very market or society subsidises the operation of the company after its liquidation by assuming externalised costs, the objectives of shareholder and directors regarding the level of risk are differ substantially.
The obligation of a legal person to take into account the interests of creditors needs to be ensured through the establishment of duty of managers towards the creditors. This duty ought to be in effect only if the company finds itself in a difficult financial situation. The duty would remain internal and it would be enforced not by creditors themselves, but by bankruptcy administrator.