| Disincorporation and liquidation are important components of corporate law system. When a company comes to its last stage, to disincorporate and liquidate the company orderly, safely, fairly, and effectively is important to protect the legal rights of the creditors, share holders, and other people relevant, to keep the economic order of the society, and to lower the management cost of the country. However, research and legislation in China about disincorporation and liquidation is lagged behind compared with foreign countries. Firstly, some basic concepts are not clear, such as what is the status of the company under liquidation, how to define the action of the industrial-commercial authority's invalidation of the license of the company, whether or not the share holders can sue to disincorporate the company, is it legal to dissolve a company without liquidation, what is special liquidation, under what situation will a company be obliged to disincorporate, who will be responsible for liquidation after the disincorporation, etc. Secondly, some primary legislative principles about disincorporation and liquidation that are adopted in foreign countries are not established in China, such as a company must be liquidated before disincorporation except for acquisition, the company remains valid during the liquidation until it finishes the invalidation registration, an ordinary liquidation must be replaced by a special liquidation under the instruction of the court when there is an impediment or a fraud, the company should apply to the court for bankruptcy when it is found that its debt is over its asset during the liquidation, the number of people execute liquidation can be several or just one, companies applied for annulment shall be judged by the court and must be liquidated, etc. Thirdly, China doesn't have some of the fundamental rules that are specified in the laws of foreign countries, such as the rule of disincorporation registration, the rule that the company should sue to let the court judge for disincorporation if there is a deadlock between share holders, the rule of credit trade-off in special liquidation, the rule that people who execute the liquidation are jointly responsible for compensating the loss of the third party caused by their activities that are illegal or vicious, the rule of special liquidation, the rule of the representation of the people who execute the liquidation, the rule of the court supervising the liquidation in an inactive way, the rule of how long the accounts and documents should be kept after disincorporation, etc. Because of the lack in research and legislation, the system for companies leaving the market is highly disorganized, which harmed the interest of the creditors and relevant people, increased the risk of market exchange, damaged the order of the market economy and the ethic of doing business, wasted the resources of the society, and impaired the authority and seriousness of the law. The article believes that to complete the disincorporation and liquidation system in China, legislative theory and legal system of developed countries should be referred to and be imported. Legislation on disincorporation and liquidation should be united. Criterions should be set up for basic concepts, basic principles, basic systems, and basic procedures. Blank in legislation must be filled.The system for the court to disincorporate a company should be established, and the current special liquidation system regulated by administration should be replaced by judicial special liquidation system. The system of legal liability for violation of the liquidation regulation should be completed and strictly carried out. (The responsibilities are of civil, administrative, and penal. The current situation that administrative punishment is widely used while civil compensation is only used in a small scope, and there are too many blanks in defining the penal punishment should be changed.) As a result, a scientific system of disincorporation and... |
PDF Full Text Request