중국 ｢회사법｣ 제191조의 관점에서 본 이사의 제3자에 대한 책임 재론

According to the traditional theory of corporate organs, the personality of corporate directors is absorbed by the legal person, and thus they do not bear direct external liability. For third parties other than directors and the company (especially creditors), their rights and obligations are associated with the company; therefore, the liability for compensation to third parties should naturally be borne by the company. As for whether and how the company pursues recourse against directors internally, this falls outside the scope of considerations regarding third-party liability. In the 2023 revision of China’s Company Law, Article 191 is regarded as a pivotal innovation, as it establishes directors’ external liability as a generally applicable legal rule. This provision explicitly stipulates for the first time that directors shall bear direct legal liability to third parties, marking a significant adjustment and advancement in the traditional liability model under the theory of corporate organs. The new legislative framework adopts the principle of “taking corporate liability as the foundation, supplemented by directors’ liability.” This adjustment not only strengthens directors’ sense of responsibility but also injects new vitality into the corporate legal person system. However, within this emerging legislative field of directors’ liability to third parties, there are currently three core issues requiring in-depth exploration and clarification. First, at the theoretical level, within the jurisprudential system rooted in the theory of corporate organs, the jurisprudential basis for directors’ liability to third parties remains controversial. Second, in terms of constituent elements, under the macro framework of organizational law, the elements of directors’ liability to third parties need clearer delineation compared with ordinary torts. Third, regarding the form and extent of liability, the specific methods of compensation by directors to third parties and the scope of their liability require further definition. In summary, this paper aims to explore how directors bear liability to third parties when the company commits tortious acts and how the corresponding legal system applies, thereby maximizing the legislative efficacy of this provision.