On Creditor Protection In The Process Of Corporate Dissolution And Liquidation

The creditor protection in corporate dissolution and liquidation has long been neglected. On the basis of the reorientation of corporate creditor's role, this paper selects two distinctive viewpoints and builds the systematic projection of the protection system of corporate creditor from variant aspects, with a hope to benefit the future legislation and judicial practice. The paper is composed of the following four parts, namely, the orientation of the creditor's role; the judicial intervention and creditor protection of corporate dissolution and liquidation; the shareholder's liabilities and creditor protection in corporate dissolution and liquidation; proposals for legislation on creditor protection in corporate dissolution and liquidation. I am to make a general introduction to the features and novel ideas of the paper.In the first part, the term of creditor is defined as a person who has lawful claims over a debt; the creditors are classified into active creditor, passive creditor, and social creditor. Thus, a relatively overall protection scope is set up for the creditor. Meanwhile, it is stressed that the interest of the creditor enjoys priority over that of shareholder, providing the project origin of system building for the protection of corporate creditor.In the second part, the paper discusses the judicial intervention and creditor protection. In the stage of corporate dissolution and liquidation, the court rules and takes charge of the dissolution process, wholly supervising and emphasizing on the corporate liquidation. This function of the court is granted by the neutrality, passivity, and formality of jurisdiction. Profusely referring to the successful legislation case of the advanced countries, the paper introduces dissolution order and dissolution judgment, the two representational verdict systems of judicial intervention into corporate dissolution, to localize China's legislation and judicial practice. In the judicial intervention into corporate liquidation, in order to systematically protect the benefit of corporate creditor, the court's presiding and supervising function is to be wholly started up on the occasions of executive constraint dissolution and court ruled dissolution and the specific aspects designated by the liquidator. In view of the problems encountered in judicial practice and the successful experience of the advanced countries, the paper puts forward the following resolutions: first, the procedures for a simple corporate dissolution case; second, other claims collateral to a dissolution proceedings; third, dissolution and trial of any other lawsuits targeted against the corporation; fourth, enforcement in the corporate dissolution procedures.In the third part, with the focus on shareholder's liabilities and corporation creditor protection, the paper systematically probes and establishes the creditor protection system of the corporation under dissolution and liquidation, from such three layers of the shareholder's liabilities as the shareholder's limited liability, the exceptional application of limited liability, and negation of corporate legal entity. The veil puncturing theory and deep rock doctrine of the American corporation law, directly demanding liabilities of the German corporation law, providing new theoretical basis for the further defining of the shareholder's liabilities of the corporation under dissolution and liquidation and implement of the interests of corporate shareholder. The author strongly denounces the simple confusion of exceptional application of limited liabilities and negation of corporate legal entity by some scholars in reality. The paper points out that negation of corporate legal entity does not necessarily bring about the exceptional application of the limited liabilities; nor does the exceptional application of the limited liabilities take negation of corporate legal entity as the prerequisite. In the section of negation of corporate legal entity and creditor protection, the author discuses the abandon or preservation of corporati...