董事对第三人责任的制度困境与规范重构

Institutional Dilemmas and Regulatory Reconstruction of Directors’ Liability to Third Parties

摘要: 2023年《公司法》第191条创设了董事对第三人直接担责的新制度，对破解传统商事追责机制具有重要意义。结合当前司法适用现状来看，该制度目前主要存在三重困境：一是责任性质模糊；二是主体范围界定不清；三是责任形态争议较大与举证困难。由此，可基于董事对第三人责任制度的法理依据，也即以董事身份的“双重性”、双重雇主责任理论及信义义务扩张理论为切入点，将董事对第三人责任的法律性质明确定性为特别法定责任，对其构成要件予以细化，并明确董事与第三人的主体范围，构建以补充责任为主、连带责任为辅的责任形态优化进路，以期为第191条的理解与适用提供理论参照。

Abstract: Article 191 of the 2023 Company Law creates a new system in which directors are directly responsible for third parties, which is of significant importance in addressing the shortcomings of the traditional commercial accountability mechanism. Considering the current state of judicial application, this system presently faces three major difficulties: first, the nature of the liability is unclear; second, the scope of subjects is not well defined; third, there are significant disputes over the form of liability and difficulties in providing evidence. Therefore, based on the legal theory behind the system of directors’ liability to third parties, namely the “duality” of directors, the dual employer liability theory, and the theory of expanded fiduciary duties, the legal nature of directors’ liability to third parties can be clearly defined as a special statutory liability. The elements of this liability can be refined, the scope of subjects between directors and third parties can be clarified, and an optimized liability model can be constructed that focuses on supplementary liability with joint liability as a secondary form. This aims to provide a theoretical reference for the interpretation and application of Article 191.