违反勤勉义务之董事对债权人的责任承担

The Responsibility of Director Infringing the Obligation of Piligent to Creditor

我国《公司法司法解释三》第十三条第四款规定股东在增资阶段未履行或者未全面履行出资义务,债权人可以请求未尽勤勉义务的董事承担责任,但就责任的性质和责任的承担方式没有进行规定。董事对债权人承担的责任性质应当是侵权责任,承担责任份额的大小,应当结合过错、原因力和公司法保护利益的特殊性等因素综合考量。董事在违反勤勉义务的情况下,应当对债权人承担不真正连带责任。

The paragraph 4 of article 13 in Judicial Interpretation of Campanies Law（3 ）＂ provides that in the event that a shareholder failed to fulfill or fully fulfill his capital contribution obligation when the company increased its capital, the creditor could assess blame for the director who did not fulfill the obligation of diligent. However, there is no provision on the nature and the commitment way of the responsibility. The nature of the obligation of the director should be tort liability. The share of the accountability should be determined by fault, reason power and special ben- efit protected by company law. The director infringing the obligation of diligent should undertake the not really joint liability to creditors.