Thoughts On Difficulties And Litigation Methods Of Judicial Dissolution Of Companies

Company dissolution cases are the new type of cases that arise after the new Company Law. While only Article 183 of the new Company Law relates to this subject, with the result that the interpretation of this article, treatment of this type of cases and the mode of trial vary greatly. For this purpose, this article mainly explores into the cause and theory of company dissolution cases, refers to the theory and practice of other nations, and analyses the related legal problems existing in the judicial practice, in the effort to contribute certain thoughts and solutions for such cases.Firstly, the article discusses the difficulties that may be encountered in the process of handling company dissolution cases, and analyses the origin, cause and form thereof. Difficulties mainly come from the deadlock in company affairs, caused by the difficulties in the cooperation among the shareholders that some shareholders find it difficult to withdraw. The main form lies in the treatment of such cases in the phases of acceptance, examination and trial.Secondly, the article discusses the jurisprudence of company dissolution litigation. For companies where the deadlock between the shareholders and the board of directors is serious and worsening, judicial intervention is reasonable and necessary and dissolution is the ideal legal channel for shareholders to withdraw, the jurisprudence of which lies in the company's nature theory, theory of null interest of shareholders, contractual theory of company and the people combination theory of limited companies.The third part refers to the legislation methods, judicial practice and views on company dissolution litigation of other countries where the company litigations are advanced and well regulated. Germany, France, Japan, Korea and Taiwan of China all have explicit provisions on this subject, while Anglo-American countries like Britain and United States, under the influence of the principle of business rules, hold prudent approach to company dissolution litigation.Finally, the article analyses the method of solving problems arising in company dissolution actions. The company dissolution action is action for alteration by nature. Therefore, during the process of case acceptance, no preliminary proceeding shall be provided, i.e., such cases shall be accepted as long as the litigant provides proper evidence and such cases shall be governed by the court located in the same place as the company; during the process of trial, where a company should be dissolved depends on whether the statutory requirements for company dissolution are satisfied. The court shall maintain the principle of equality while exercising its discretionary power and clarification right, take measures such as informing the parties to alter their claims, encouraging them to seek remedy with their own efforts or providing intermediate remedy in order to achieve the final solution of company deadlock. The court shall also render varied decisions for cases undergoing different liquidation procedures.