Research On Issues Concerning The System Of Corporate Liquidation

The establishment and perfection of the legal systems on incorporation and termination will directly influence our economic order stability and establishment of social credit system. Given the current status of our legislation and academic research, compared to the corporation admittance mechanism in healthier regulation, the corporation retreat mechanism evidently draws less attention from the legislatives and the academic circles. Even though the recently reformed corporate law has perfected the grounds of corporation dissolution, edited the time limitation on creditor's right, and clarified the corporation's continence in liquidation, its provisions are still relatively simple and loose. Especially, it has neither found an integrity special liquidation system, which destroyed the completeness of the retreat mechanism, nor mentioned the civil liabilities of the liquidation obligor, which makes the judicial departments awkward since there are no rules to dispose a mass of problems in practice. Therefore, in this thesis, starting from the basic theories on liquidation, by combining theory with practice, adopting approaches of comparative law and law interpretation science, we have reviewed and analyzed the main legal issues concerning corporate liquidation and puts forward some proposals and suggestions on the base of the actual circumstance of China.Part one First,as there are different opinions to the definition of corporation liquidation, we define it as a legal system in which, after dissolved by law or articles of association, the corporation will liquidate its all assets and debts, put an end to all its legal relationships and finally terminate its legal personality. This definition can better show the characters of liquidation: not applicable to all kinds of dissolutions, mainly to end all the rights and debts and regulated by law. By comparative study, we find that there is little difference among the liquidation procedures applied to different corporations. Second, clarify the type of corporate liquidation and arrange the study scop of this article. Acording to different reason of corporate dismissed , the corporate liquidation may divid into the brankruptcy liquidation and non-brankruptcy liquidation. Since there are specific provisions on brankruptcy liquidation in brankruptcy law, the author only study on the non-brankruptcy liquidation and related liability system. Acording to the intervention level of courts and creditors, the corporate liquidation can divid into ordinary liquidation and special liquidation. The aim of corporate liquidation is to protect the benifical body at most extent, and to pay proper attention to both efficiency and fair. The Corporate Law has few provisions about it ,we shoud perfect it in the future. Third, once the corporation enters the liquidation procedure ,the capacity of civil rights and the capacity of disposition are bound to be limited.Part two The Corporate Law has no specific provision to the liquidation body. There are several opinions to liquidator and liquidation obligors in theory and practice. The author clarifics the liquidation obligors from the scope of the right and obligation, and arranges the legal status of liquidator. This has the vital significance to protect the corporate creditor. Part three While discussing the liquidator and the liquidation obligor's civil liabilities in liquidation,we considered that creditors can only claim their creditor's rights according their contracts with the corporation and have no right to intervene its liquidating activities. Though, in principle, creditors cannot allege the liabilities of a liquidator, it is the latter's liability to compensate for the damages the creditors or the corporation suffered, caused by its improper performing in liquidation, deliberately or with gross fault. The basic civil liabilities of the liquidation obligor only confines to liquidation obligations,that means its duty is to liquidate the corporation's assets and debts and take on civil liabilities for the creditors with the corporation's independent assets. But the liquidation obligor ought to take the direct liabilities of compensation in the situations such as: being neglected to perform the liquidation obligation, disposal in bad faith, conversion of the corporation's property, having the registration nullified by fraudulent means, public promise, abuse of the independent legal personality of corporation and the shareholders'limited liability for corporation limited, etc.In this part,we have analyzed in detail how to identify the liquidation obligor's liabilities mentioned above.Part four In the end, we have made some suggestions on perfection of the corporation liquidation. As to the creditor's rights declaration, we have urged that different declaration time limits and modes be applied based on different kinds of creditors. We even tried to put forward some suggestions, such as to construct integrated legal systems of special liquidation and liquidator, to perfect the liquidation liability mechanism. In doing so, we hope that there will be a little help to enable the corporation liquidation system, built on a scientific, reasonable, and practicable base, to protect the creditors better, to safeguard the healthy and stable development of social economic.