Research On The Substitute Relief Mechanism Of Company Judicial Dissolution

In 2005,the company law was revised to establish the judicial dissolution system for the first time,forming the relief measures for shareholders in the company deadlock.Since the company law revised in 2013 to continue the judicial dissolution system regulation,the current "company law" the one hundred and eighty-second regulation: "the company management occurred serious difficulties,continue to survive would suffer heavy losses make the shareholders' interests,in other ways can't solve,shareholders of the company all more than ten percent of the voting rights of shareholders,may request the people's court to dissolve the company." Judicial dissolution system as the shareholders' rights in the company deadlock relief way,under the background of its first established is company contract incompleteness of judicial intervention,the company's articles of association,shareholders agreement,often not for the company's "human disorder" foresight to agreed terms of corresponding asked judicial authorities there are people in the company of company deadlock situations,such as disorder and involvement in the internal governance.Secondly,the judicial dissolution system of a company is the inevitable result of the majority of the company's capital.Especially in a limited liability company,the 1:1 equalization equity structure is combined with the majority of the capital,which can easily lead to the situation that the shareholders' meeting and the board of directors are not in a position to hold each other.Finally,the judicial dissolution system can tighten the bottom line of corporate autonomy.In the dissolved company,if the court is not allowed to intervene forcibly as a neutral third party,the minority shareholders of the company are vulnerable to fall victim to the autonomy of the company.In conclusion,the judicial dissolution system is of great significance to the protection of shareholders and the resolution of the company deadlock.However,there are still many deficiencies in the provisions of China's judicial dissolution system.First,judicial coercion interferes with corporate governance and corporate subject qualification,which weakens corporate autonomy to a certain extent.Secondly,the core standards of judicial dissolution have different understandings of "the hindrance of human relations" and "the external operation situation".Especially in the judicial practice of dissolving a company based on the standard of human relations obstacle,many good companies of high quality are disbanded just because of the contradiction between shareholders and directors,and the social value of the company's existence is seriously ignored.Finally,the judgment result of the judicial dissolution case in China has limited influence on the company.Many companies that have been dissolved have not been dissolved,and some of them have continued to exist after changing their shareholders,or even have not changed.This means that the judicial dissolution system is too strict for the company itself.Even if shareholders file lawsuits,the company is not willing to use it as a means to settle disputes.Therefore,it is urgent for China to establish alternative relief measures for judicial dissolution system and alleviate the rigidity of judicial dissolution system.Based on this original intention,this paper,by referring to the experience of alternative remedies in the judicial dissolution system outside the region and combining with the practice of 769 cases of judicial dissolution in China,puts forward alternative remedies in China's judicial dissolution system,and provides a legal framework for its application in China.In general,this paper is divided into four parts:The first chapter is "norms,jurisprudence and predicament of company judicial dissolution".This part firstly makes a systematic analysis of the legal provisions of the company's judicial dissolution system,clarifying the core elements,main elements and necessary conditions of its application.Secondly,it demonstrates the legitimacy and basic principles of judicial dissolution system.The judicial dissolution system is the judicial intervention under the incomplete background of the company contract,which is the inevitable result of capital majority decision and the tightening of company autonomy.Its establishment should follow the principles of interest measurement,substantive relief,alternative relief programed priority and clean hands.Thirdly,it analyzes the dilemma of the judicial dissolution system and points out the evolution trend,logical defects and the practical dilemma of the dissolution of good companies.Finally,by sorting out769 cases of judicial dissolution retrieved,this paper objectively analyzes the current situation of judicial dissolution of the company in China,the value orientation of the judgment,and reflects on the judgment effect of the current judicial dissolution cases,so as to provide a practical basis for the following.The second chapter is "the connotation,significance and theoretical basis of judicial dissolution alternative relief".In this part,what is the alternative remedy measures for judicial dissolution? It refers to the effect of corporate deadlock relief which can be achieved by judicial dissolution system through other ways besides judicial dissolution.Then,the significance of alternative remedies for judicial dissolution is analyzed from the macro and micro aspects respectively.From the macro perspective,these measures demonstrate the continuing function of the judiciary to the law and promote the balance between the personal interests and social interests within the company.At the micro level,alternative measures are conducive to solving the company's management difficulties and protecting the interests of minority shareholders.Finally,the theoretical basis of alternative relief measures is analyzed systematically.For example,the principles of enterprise maintenance,the theory of corporate autonomy and the theory of interest measurement all form the theoretical support of China's judicial dissolution alternative remedies.The third chapter is "the extraterritorial reference and enlightenment of alternative remedies for judicial dissolution".This part compares outside the judicial dissolution of alternative remedies of analysis,the first of Anglo-American law system and continental law system carding and comparing alternative remedies,such as Britain's "relief" unfair bias,interim director system in the United States,Germany's withdrawal and expulsion system,etc.,and refined alternative remedies legislation differences between two law systems.Therefore,we can get the enlightenment to China's judicial dissolution system alternative relief measures,and then put forward the design path of China's alternative relief measures.The fourth chapter is "a study on the classification of alternative remedies for judicial dissolution".This part of the system has demonstrated that China should establish the alternative relief measures.The first is the compulsory transfer of shares system,which solves the deadlock of the company in the way of shareholder separation,but its application still needs to solve the problems of subject qualification,transferor and the determination of transfer price in China.Second,the management acquisition system.Based on the theories of agency cost and corporate governance structure,China has a theoretical basis for establishing management acquisition.In order to establish the management acquisition in China,it is necessary to make clear the way,target company and financing object of management acquisition so as to provide sufficient conditions for management acquisition.The third is to appoint interim directors.In the case of golf companies,the appointment of temporary directors by the court plays an important role in resolving the deadlock of the company.In fact,the establishment of temporary director system in China has a solid theoretical basis,which reflects the limited judicial intervention under the corporate autonomy and is an efficient and low-cost way to solve the corporate deadlock.Therefore,China should establish the temporary director system.In order to improve the enthusiasm of the temporary directors,it is necessary to clarify the application conditions,the qualification of the subject and the rights and obligations of the interim directors,and the rules for the exemption and exemption of the responsibilities of the interim directors.The fourth is mandatory division of the company.Mandatory division of the company has the thoroughness to solve the deadlock of the company and can effectively solve the deadlock caused by the competition for control.Northeast high-speed discrete event fully shows the company is divided to solve the effectiveness of corporate deadlock,draw lessons from the northeast high-speed discrete events,forcing companies to division in our country should be from the following aspects:clear force companies to separate conditions,such as the severity of the corporate deadlock,the type of division of the company,the company the perfect degree of the discrete scheme,etc.;When forcing the division of the company,there must be protection measures for minority shareholders,such as objection shareholder share repurchase,non-proportional share distribution rules,etc.Company division also has perfect creditor protection measures.