The Study Of Legal System On Corporate Liquidation

The thesis mainly focuses on the study of legal system on corporate liquidation from the perspective of the protection of creditor’s interests. Though there are many researches on the legal system of liquidation, including researches on corporate liquidation system in our country and researches specializing in the protection of creditor’s interests in the corporate and the protection of creditor’s interests in liquidation, the systematic study on the system of protection of creditor’s interests focusing on the subject of liquidation, liquidation procedures, supervision over liquidation and civil liability of non-bankruptcy liquidation on the basis of the theory on liquidation, especially of analysis on the theory of liquidation value from the perspective of the protection of creditor’s interests is comparatively underdeveloped. The further study at present on supervision over the protection of creditor’s interests in liquidation is theoretically needed.There are two clues running through the whole thesis based on the above subject and perspectives:on the one hand, the perfection of corporate liquidation system. The thesis attempts to examine the shortness on the basis of the liquidation value, such as fair value, order value and interest value, and puts forward some suggestions; on the other hand, it explores methods and ways on complete and systematic protection of creditor’s interests in corporate liquidation system from the view of protection of creditor’s interests.The liquidation in this thesis is defined as non-bankruptcy liquidation which happened when the corporate dissolves in accordance with law after foundation. Corporate referred in this thesis are mainly restricted to Limited Corporation where shareholders assume limited liability and Stock Limited Corporation. The creditors referred in this thesis include voluntary creditors (or creditors under ex contractu, active creditors), involuntary creditors (or creditors under tort obligation, passive creditors) and statutory creditors (or social creditors).The logic structure of this thesis adopts theoretical argument and analysis on system.The introduction explains reasons for corporate liquidation system from the perspective of protection of creditor’s interests on the basis of introducing the background and the significance of the thesis. Reasons for the thesis are to broaden ways of protection of corporate creditor’s interests, to realize the core value of corporate liquidation system and to perfect the corporate liquidation system with the content of protection of creditor. It also makes a comment on the status quo of study home and abroad and puts forward the orientation and methodology of research.Chapter one, which is the argument for the theory hold in this thesis, presents the basic theory on legal system of corporate liquidation. It clarifies the implication of corporate liquidation though comprehending and analyzing conception and legal features of corporate liquidation. It also examines the development and status quo of corporate liquidation system in our country on the basis of review and comment on the development of liquidation system in both civil law countries and common law countries. Moreover, it points out that different liquidation systems may theoretically reflect different attitude of law-makers on the protection of creditor’s interests, which may exerts different effects on the protection of creditors under different circumstances, and thus puts forward that this should be considered in legislation of company laws in our country, making the classification of corporate liquidation serve for its final obligation. Dissolution is the reason for corporate liquidation. Furthermore, it points out the shortcomings of company laws in our country through analyzing different reasons for the dissolution of corporate. The legal status of the company in liquidation is a focus in theory. By comparing instances of legislation, it decided to adopt the opinion of "the same character". At the end of this chapter, though analyzing the value of corporate liquidation system, it indicates that the main obligation of corporate liquidation system is to treat all creditors equally and that debts should be paid fairly. The internal value of corporate liquidation system lies in the protection of creditor’s interests, thus the provision of concrete rules on corporate liquidation should reflect such value on protection of creditor.Chapter two illustrates the role of liquidator in corporate liquidation. This thesis has dedicated pages to make a systematic discussion on system analysis from Chapter two to Chapter five. Liquidator, who is the executor of corporate liquidation, is the most important subject in corporate liquidation. Whether he or she performs his or her duties is essential to the conduct of corporate liquidation, especially to the protection of creditor’s interests. Though distinguishing liquidator and other conception concerned, this chapter advances suggestions on the uniformity of liquidator’s names in our country. Moreover, on the basis of comparative analysis on the qualification, designation and remove of liquidators in corporate liquidation, this chapter brings up some suggestions on the specification of the qualification and the remove of creditors, and on the basis of comparative analysis on the rights and obligations of creditors in corporate liquidation, it proposes to perfect the procedures of notice and declaration of creditors. Furthermore, noticing the disadvantages of creditor’s status and necessity to strengthen the protection of creditor’s interests in current corporate system, this thesis indicates that it agrees with the "the idea of support" and "the idea of direct obligation" as to the question of whether liquidator should assume the obligation to the company’s creditors.Chapter three presents procedural protection of creditor’s interests in corporate liquidation. It, from the perspective of the internal value on protection of creditors in corporate liquidation, points that the initiating procedures, operating procedures, concluding procedures and supplementary procedures (also compulsory liquidation procedures) in corporate liquidation are deficient in the protection of creditors. Though comparing and drawing lessons from the provisions and experiences on company laws of common law countries, civil law countries and Taiwai Area in our country, it brings up some useful and operable suggestions on the perfection on common liquidation procedures and compulsory liquidation procedures of companies.Chapter four discusses supervision mechanism over the protection of creditor’s interests in corporate liquidation. It analyzes the status quo and problems in existence on the supervision over relevant behavior of liquidators in common liquidation procedures and compulsory liquidation procedures from the view of protection of creditor’s interests and proposes to establish a monitoring mechanism combined the passive execution of supervision by courts with active execution of supervision by creditors in common corporate liquidation and a monitoring mechanism with courts and creditors as supervisors of liquidation and improving ways of execution of supervision of courts and creditor’s meeting, bringing the intervention of jurisdiction and active involvement of creditors in accordance with the passive principle of respecting jurisdiction and active principle of bringing creditor’s initiative into full play in common liquidation procedures on the basis of comparing and referring to the provisions and experiences on supervision system of corporate liquidation of Japan, Korea and Taiwai Area in our country.Chapter five studies the civil liability incured by damaging creditor’s interests in corporate liquidation. This part makes a detailed analysis on the civil liability assumed by liquidation obligor, liquidators and shareholders in protection of creditor’s interests. The civil liabilities assumed by liquidation obligor to creditors include liabilities due to nonfeasance on non-performance of liquidation, malicious disposition or embezzlement of companies’assets or cancellation of companies without liquidation in accordance with laws. Civil liabilities assumed by liquidators to creditors include liabilities incurred by the slight of performance of liquidation or illegal performance of liquidation. Civil liabilities assumed by shareholders to creditors include liabilities arising from capital contribution flaw, abuse of corporate personality and the termination of companies.The conclusion presents the summary on external rules required by internal value on protection of creditor of corporate liquidation system, and limitations are presented here as well.