Research On The Company Judicial Dissolution Procedure

In 2005, Article 183 of the Company Law endowed shareholders with the substantive right to dissolve a company. What is more, in 2008, the Company Law supplementary regulations clearly involved several issues, including the causes of action, the defendants, settlement and effectiveness. There is no doubt that shareholders have the right to dissolve a company. However, how to guarantee the right actually is still incomplete in theory, as well as whether to widen the scope of judicial dissolution. Therefore, this paper attempts to analyze the theoretical basis of the judicial dissolution procedure, and find the major defects of China's procedure of judicial dissolutions. By learning from the advanced experience of foreign companies in legislation and judicature, we can perfect our company's judicial dissolution procedure to better instruct our practice.The company's judicial dissolution procedure results from the limitation of the company's self-administration and the function of the country's economic management. Essentially, it is the country's adjustment on the company's self-administration. The corporation governance system can be divided into the internal and external mechanism. Although the company belongs to an autonomous enterprise, it is not absolutely so. The reason is that simple self-administration may cause some tyranny; some small shareholders'rights and benefits may be damaged and cannot be made up. In this case, the country's exterior mechanism really counts. Because the aim of administrative authority is mainly to protect public power, it is not suitable for administrative department to manage corporate internal affairs. For intervention into the inner affair of a company,the judicial form is more fair and effective than the administrative one. But it is not universally true, for the judicial referee results will directly influence the company's management, and even hinder its development, therefore, the judicial intervention should be modest, and different judicial dissolution cases may apply different procedures.In foreign countries, judicial dissolution procedure, according to the different protecting interests, can be divided into the usual procedure and the special procedure, which have a larger difference in many aspects, such as the cause of the action, specific ways of settling dissolution etc. By learning form some typical countries'procedure of judicial dissolution, I firmly believe that not only the successful experience on the degree of judicial intervention on the corporate governance, but the judges' discretion and legislation law is also worth reference. In addition, there are obvious defects in China's judicial dissolution procedures, conflicts between efficacy and formal justice, conflicts between expectancy and the actual status, and lacking special procedures included.The improvement suggestions of China's judicial dissolution procedure are as follows. First, we can perfect the existing shareholders'lawsuit to dissolve the company program, for example, properly allocating the burden of proof, preventing malicious lawsuits and enriching the dissolution of alternative remedies. Second, we can choose the suitable form for China's characteristic legislative model, establish the non-suit program, and complete the judicial dissolution procedures.