Study On The Disposal Of The Legacy Debt Of The Deregistered Of The Non-Bankruptcy Through Liquidation Process

The legacy debt of the deregistered of Non- Bankruptcy through liquidation process is difficult to disposal is a common problem in the company practice fields at present.Affected by the theory of “the deregistered namely the terminated”, the prosecution of creditor sue the company was ruled inadmissible due to improper legal entity. Therefore,the creditor can only seek other remedies left. However, these kinds of relieves means are often applicable to the case, it is difficult to effectively safeguard the interests of creditors.The rights of creditors is struggling. In view of the social reality, the author carried on the research of the disposal of the legacy debt of the deregistered of Non – Bankruptcy through liquidation process. This paper is divided into four parts:First, to analyse the different types of the legacy debt, namely the second chapter. The two chapter from the perspective of procedural law and substantive law, analyzes the legacy of debt before the company liquidation procedure of disposal. The author thinks, should improve the corporate liquidation inform and reporting system, reduce undeclared debt; in the process of liquidation of, of disputed debt and contingent liabilities to make appropriate arrangements for the, to facilitate the cancellation of the company of legacy debt disposal.The remaining debts in the company liquidation procedure is not properly disposed of, but it is difficult to relief, reflecting the current legislation on the disposal of the remaining debt is not reasonable.Second, the impact of the cancellation of the Research Analysis Corporation on the disposal of legacy debt, that is, the contents of the third chapter. The termination of the company must meet the company’s liquidation is completed, the entity elements of the legal relationship between the end of all claims and liabilities and the company has handled the procedures for the cancellation of the registration elements can be effective. The current company law theory and judicial practice, the identity of "the cancellation of the company is terminated, the company no longer assume responsibility, or is no longer a liability subject" theory is company non bankruptcy after the cancellation of the left struggling to dispose of debt the ideological roots. I believe that, even if the company has completed the registration of cancellation, but as long as the company does not meet the requirements of the termination of the entity, then it can not happen the legal effect of the termination of the company. The company still continues to exist in theory, is to continue to assume responsibility for the company’s debt is the main body, not out of the legal relationship between the company’s debt and debt. In judicial practice, the company shall not be admitted of litigation subject qualification, can no longer be indicted the defendants, and not because of the effect of the termination of the company, but on the cancellation of the company registered the effect, namely, credibility, resistance and proof of the force.Since the company has completed the cancellation of registration, based on the effectiveness of the registration, even register itself flawed, but in correcting or revocation of the former, law still sees for the company should be after the completion of the liquidation, and shall go through the cancellation of registration, comply with the substantive and procedural requirements of the termination of the company. Therefore, as long as the break off of registration of a company effect, you can restore the company’s true colors, continue to take responsibility for their own debt. The author of this construction system is the company cancel the dissenting registration system, interested persons on the cancellation of the company’s legality to the company registration authority objection, the company registration authority after the preliminary examination, grants the dissidence registration, temporary occlusion of the validity of the registration of the company.Interested persons may bring a lawsuit to the court within a certain period, this time the court shall accept.Third, analysis of the defective company deregistration left creditor relief means,namely the fourth chapter. The current legislation of our country stipulates legacy creditors four remedies: request the company registration authority revocation of the cancellation of the registration of the company; the second is request the company registration authority,auxiliary mechanism and including the liquidation group, a limited liability company shareholders, the directors of a joint stock limited company, controlling shareholder and actual controller, the applicant to bear the liability for damages; the third is request limited liability company shareholders, the directors of a joint stock limited company, controlling shareholder and actual controller take on the vicarious liability. The legal basis of alternative liability is disregard of corporate personality; four is the joint responsibility of people committed to the claim of debt. The debt promise is a debt to join, join the rules apply to debt. However, in the exercise of the right of defense, the author thinks that the relationship between debt commitments should be limited to defense reasons cited. Look from the surface, legacy creditor relief means rich, but actually limited utility: remedy harsh conditions, applicable to the case Co.; legislation not taking responsibility bear the main body of the ability to assume responsibility, relief high cost; relief is limited to the company slight defect cancellation of registration, relief of an object is not comprehensive enough.Fourth, analysis of legitimacy, how to dispose of non defective company deregistration and left debt disposal problems limit, namely the fifth chapter and the sixth chapter. In view of the existing remedy defects, the author thinks that if the non defective company registration, creditor’s rights and interests is also left relief, then the defect relief means there can make up for. Disposal of non cancellation of registration of the company slightdefect of legacy debt has its legitimacy: company with limited property as collateral assume unlimited liability; liquidation after did not result in elimination of creditor’s rights or seeing to give up the legal effect of the debt to the creditor; cancellation of the company’s program has only the procedure legal significance; shareholders of the company for illegal distribution property of the company should be is unjust enrichment; legal person and natural person responsibility common-- not because of the subject qualification loss and of course, termination; overseas legislative practice of enlightenment. Therefore, the company has completed the registration of cancellation in case the creditor subrogation claim the remaining shareholder return obtained from the remaining assets of the company’s property to realize the creditor’s rights. However, for the shareholders and creditors of the balance of interests and efficiency and operational considerations, should be restricted to the relief of creditors: Legacy restrictions, the main premise.