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s an indirect duty in that the duty is owed not to creditors, but to the company to consider creditor interests. In this regard, it should be noted that while there has been support for the view that the directors owe a direct duty to creditors, the predominant opinion, both within academic discourse and in judgments is that this is not correct. Rather directors owe a duty to their companies to take into account the interests of creditors. While the former provides for a direct duty, the latter allows for an indirect duty, a duty which is mediated through the company.
The rationale for this duty lies in the fact if a company is insolvent or doubtfully insolvent then ‘the interests of the company are in reality the interests of existing creditors alone.’ At this time, because the company is effectively trading with the creditors’ money, the creditors become the major stakeholders in the company and are, in effect, the real owners of the company; the ownership rights of the shareholders having been expunged as there is nothing over which they have a claim. The creditors, therefore, warrant some form of fiduciary protection. The directors become accountable principally to the creditors as they are the ones to lose out if the company collapses. Consequently, if a company is insolvent, the directors will be held to have acted improperly if they employ funds that are payable to creditors in order to continue the activities of the company. Thus, in situations of insolvency, whilst the doctrine of limited liability shifts the risk of failure from the shareholders to the creditors, the duty to take account of creditors’ interests seeks to mitigate the shift.

3 在职责范围内保护债权人利益——3 The extent of the duty to protect creditors’ interests
When a company has a significant amount of assets and the debts owed to creditors are relatively minimal then the interests of creditors should not count for a lot because the company will be able to satisfy them. However, where there is some element of insolvency or possibility of it, the situation is significantly different. In this regard, the courts have taken widely differing views. Some have taken the view that the duty of directors only arises when the company is insolvent whilst others courts have taken a broader view and held that the duty arises where the director has knowledge of a real risk of the company’s insolvency.
While accepting that the duty arises when a company is insolvent, Street C.J. in the frequently cited case of Kinsela v. Russell Kinsela Pty Ltd (in liq) was reluctant to state when the duty arises, save to acknowledge the fact that key factor wasfinancial instability. He held:

I hesitate to attempt to formulate a general test of the degree of financial instability which would impose upon directors an obligation to consider the interests of creditors.

In my view, it seems that deciding whether the duty to protect creditors’ interests had arisen will depend on the facts of each particular case. Clearly the courts have held that directors must take into account creditors’ interests when insolvency exists, but there is significant authority to suggest that this same duty is triggered when a company’s solvency is doubtful or even when a company is suffering financial instability, and possibly when directors are contemplating any action which if unsuccessful would prejudice creditors.

4 目的和限制董事的义务保护债权人的利益——4 The purpo