论催缴义务下董事对公司债权人责任的规范构造

On the Regulatory Construction of Directors’ Liability to Company Creditors under Collection Obligations

摘要: 资本认缴制虽鼓励了创业，但同时也增大了公司债权人的风险。2023《公司法》首次规定了董事催缴义务，令董事负担催缴股东出资的监督义务。然而条文仅仅规定怠于履行催缴义务的董事须对公司承担赔偿责任，是否需要对公司债权人承责尚不明确。本文认为基于保护债权人理念，令董事对公司债权人承责具备正当性，且存在规范基础。其责任性质应当属于一种不作为侵权。其责任具体构成应当符合侵权行为、因果关系、损害、过错要件。责任形式应当采相应的补充责任。

Abstract: Although the capital contribution system has encouraged entrepreneurship, it has also increased the risks for company creditors. The Company Law of 2023 for the first time stipulates the directors’ obligation to collect contributions, imposing a supervisory duty on directors to urge shareholders to pay their contributions. However, the provisions only specify that directors who fail to fulfill their collection obligations must bear compensation liability to the company, and whether they need to bear responsibility to the company’s creditors is still unclear. This paper argues that, based on the concept of creditor protection, it is justifiable for directors to be responsible to the company’s creditors, and there is a normative basis for this. The nature of their responsibility should be a type of negligence in omission. The specific components of their responsibility should conform to the elements of tort behavior, causation, damage, and fault. The form of responsibility should adopt corresponding supplementary liability.