Revisions On Company Liquidation Obligor Provisions

To investigate whether a market system is good or not, the standard does not about only to measure whether the market has established a complete access mechanism, but also whether there is a complete market exit mechanism. As a necessary procedure for a company to withdraw, the liquidation system has been an indispensable part of the legislation of all countries in the world. In reality, however, many companies do not complete their liquidation process before logged off. This will not only damage the interests of their creditors, but also undermine the stable development of our market economy.In view of this situation, China’s legislators and the Supreme Court have launched several provisions on company liquidation obligor in the Company Law and its judicial interpretation. These provisions covered the area of main body, obligation and civil liability of company liquidation obligor. The introduction of these Provisions effectively filled in the vacancy of legislation and also acted as a strong guidance for liquidation trials.Unfortunately, while working out the relevant laws and regulations on company liquidation obligors, the legislators focus too much on protecting the creditors of the company and ignore the interests of minority shareholders. What’s more, the legislators also do not pay much attention on legal principles so that the laws and regulations on company liquidation obligors could not be tested by juridical logic. The result could be deadly because the minority shareholders and many other innocent body may bear far too many legal liabilities which in fact do not match their rights. Under our rules and regulations on company liquidation obligor, the interests of vulnerable groups could not be guaranteed.The legal system of corporate liquidation obligor is originated from the judicial practice, so the foundation of its legal theory is not solid. Combining the comprehensive research results of domestic scholars in recent years with his own thinking, the author of this article hopes to make revisions and amendments on China’s current legal system of company liquidation obligor, especially focuses on the main body and civil liability.This article could be divided into four chapters:The first chapter is an overview of the company’s liquidation obligor. First of all, in order to describe the company’s liquidation obligor with its full picture, this chapter begins with the generation of company’s liquidation obligor, then points out every big moment of this concept. Secondly, through the introduction of the rights and obligations of company liquidation obligor, the concept of the main body is fully enriched. Thirdly, the author makes comparisons between the concepts of liquidation obligor and company liquidator, which are easily mixed up. By explain the relations and differs between these two concepts, the author gives a deeper understanding of company liquidation obligor, which lays the foundation for the below discussion.The second chapter mainly discusses the improvement of the main body of company liquidation obligor. According to China’s existing laws and regulations, the scope of limited liability company liquidation obligor subject and the scope of stock limited company differs a lot. Scholars also have different ideas on whether actual controller, the administrative department for Industry and commerce could be the liquidation obligor of a company. The author uses "duty" and "feasibility" as two clues to direct and discuss why company directors and controlling shareholders due to fiduciary duty should be considered as company liquidation obligors, while minority shareholders, actual controllers and the administrative department for Industry and Commerce should not be suitable for company liquidation obligors due to lack of legal obligations.The third chapter is a comprehensive discussion on the civil liability of company liquidation obligor. According to China’s company law and its second judicial interpretation, company liquidation obligor may make compensations for creditors or pay off the company debts due to the extent of their behaviors. However, the litigators could not give a proper reason for why they’ve made such a difference in the company law. The author makes a detailed and in-depth discussion between the theory of creditor’s infringement, the substitution theory of shareholder and the system of piercing the corporate veil according to the theory of law. Finally draws a conclusion that whether from the legal theory or substantive fairness point of view, company liquidation obligor who fails to fulfill his or her obligations shall bear only the limited tort liability, while unlimited joint liability is not appropriate and do not have a theoretical basis.In the fourth chapter, the author integrated the above discussion, and put forward suggestions on the improvement of the rules and system of company liquidation obligor. The author also focuses on building and improving the whole liquidation system. By changing the liquidation obligor system to the liquidator selection system, we could not only find a more reasonable way for obligation process, but also avoid many mistakes and chaos during the practice.