International Comparison Of The Company's Liquidation Of The Legal System

Liquidation is one of the most important components of the corporate legal system. When a company is in its last stage, to make the liquidation affairs arranged orderly, safely is essential to protecting the benefit of shareholders, creditors and the other people relevant. What's more, leading companies to quit the market smoothly is important to keep the economic order of the society. However, compared with other counties, the research and legislation in China is lagged behind. Firstly, some basic concepts are not clear, such as status of the company under liquidation and the behavior that cancellation of registration before liquidation. Secondly, some primary legislative rules about liquidation are not established in China, such as the rules of dissolution registration, the rules of liquidator declaration, the rules of liquidation documents reposition, and so on. The imperfection in legal rules and theories results in lots of difficulties in solving practical problems in China. For instance, what is the legal status of a company after being revoked its license? How to protect the workers'benefit after the dissolution of the company? Based on comparing the legal system of company liquidation in other countries, this dissertation focuses on the Chinese company liquidation legal system and explores its principals, rules, problems and future. In general, this dissertation discusses the legislation and practice in China while some relevant foreign laws and theories are introduced and analyzed in the meaning of comparison. Besides the preface, the whole dissertation is divided into seven chapters.Chapter one discusses the basic theories of company liquidation. Company liquidation is a legal act and procedure of ending all legal relationship, clearing assets and having the enterprise to be extinguished. The dissertation defined"company liquidation"as"liquidation which be carried according to the rules of company law", and defined"bankruptcy liquidation"as"liquidation which be carried according to the rules of bankruptcy law". With such idea, the word"company liquidation"is known as"non-bankruptcy liquidation"in this dissertation. After researching the company liquidation history of continental legal system and Anglo-American legal system, the dissertation analyzes the primary vales of company liquidation, which are known as fair and justice, benefit balance and social order maintenance. The dissertation discusses the classification of company liquidation based on the comparatively researching of the other countries'legal rules. In China, our legislation prescribes the so-called special liquidation but it is different from the special liquidation in foreign systems. In fact, in Chinese legislation of company, there is only statutory liquidation and general liquidation but voluntary liquidation and special liquidation.Chapter two studies the dissolution of enterprise. Dissolution is the cause and beginning of enterprise liquidation. The direct legal result of company dissolution is leading to the company goes into liquidation, and its legal capacity is limited in the range made by the purpose of the liquidation. With comparing and analyzing the dissolution rules of other countries, the dissertation finds insufficient of our company dissolution system and is of the opinion that it is essential and practicable for China to inject some useful rules of the other countries into our own legal system.Chapter three discusses two problems. One is the legal statues of a company in liquidation. The other is the scope of liquidation property. The dissertation follows the development both of the theory debate and practice issues about the problem of the legal status of a company in liquidation, and drew a conclusion that the legal status of the company remains into the liquidation procedure, but the company's legal capacity is limited in the scope for the liquidation purpose. The dissertation specially discusses the scope of liquidation property.Chapter four is about the rules of liquidator. Generally speaking, the qualification of a liquidator is as the same as those of a director. Both natural person and artificial person can be a liquidator. A liquidator can be a legal liquidator or an appointed liquidator. Most counties have specific time-limit for companies in liquidation to select their liquidator, which is effective on resolving the serious problem of nobody liquidating an enterprise. Liquidator's main rights are the right of representation, the right of executing the liquidation matters. The duties of liquidators are divided into two parts. One is the duties to the company, and the other is the responsibilities to the creditors.Chapter five is on the research of the general liquidation affairs and performance. The affairs of general liquidation include ending business, clearing assets, discharging debts and distributing residual assets. Among the affairs, discharging debts is the core. Its every step, such as notifying the creditors, affirming credits and paying debts in legal order, is important and can affect the whole liquidation proceedings. The dissertation believes that to establish the rules of liquidation documents reposition is necessary for China to make its company liquidation legal system maturity.Chapter six discusses the special issues in special liquidation. Firstly, the dissertation introduces the difference between the general liquidation procedure and the special liquidation procedure. Then discusses the choice we should make to establish our own special liquidation legal system. At the end of this chapter, the author expounds the necessity of inject professional liquidators into the special liquidation procedure, and gives some advice on setting up our own professional liquidators and professional liquidator organizations.The conclusion chapter comes up with suggestions to liquidation legislation of China. The author holds the point that defects of the company liquidation system of China are mainly including as followings: one is the faults of liquidation legislation, and the other is the insufficiency in protecting the shareholders, creditors and the people relevant. To improve the liquidation laws, we should follow the principle of benefit balance to make it more suitable for China in the liquidation legal responsibilities, liquidation legal relief system and company liquidation registration.