关键词: 董事对第三人责任, 信义义务, 派生诉讼, 债权人保护, 信托基金理论

Abstract: The amendment to the Companies Law introduces directors“liability to third parties”, and directors’ fiduciary liability to company creditors is an important form of directors’ liability to third parties. The trust fund theory is the theoretical basis for directors’ fiduciary duties to company creditors. The trust fund theory has been gradually improved through the development of practice, which can provide theoretical guidelines for delineating the time scope of directors’ fiduciary duty to company creditors, clarifying the behavioural elements to be satisfied for the assumption of responsibility, and determining the remedial path for company creditors to claim fiduciary duty from directors. Directors’ fiduciary duty to company creditors is a limited extension of directors’ fiduciary duty to the company. Under the existing legal system, only when the circumstances stipulated in Article 2 of the Bankruptcy Law, which indicate that the company is in financial difficulties, occur, and the director has the illegal behaviour stipulated in Article 125 of the Bankruptcy Law, the company’s creditors are able to claim fiduciary duty to the director through derivative action according to Article 191 of the Company Law, and the director is required to bear the compensation responsibility to the company rather than to the creditors directly. How the compensation of the company’s property will be used to satisfy the company’s debts will need to be differentiated according to whether the company is insolvent or non-insolvent.

Key words: directors’ liability to third parties, fiduciary duty, derivative action, creditor protection, trust fund theory