Research On The Legal Issues Related To The Omission Of Creditor's Rights And Debts After The' Cancellation Of The Company

When the dissolution of the corporation happens,the company can be cancelled after liquidate it according to the law and finish all of the credits and debts of the company.However,the omission of credits and debts were unliquidated after the corporation was cancelled due to the operation of the company system of our country generally nonstandard and serious absence of internal supervision of the market mechanism and the external constraints of corporate management departments,what's worse,the company is liquidated which is illegal and the phenomenon of the cancellation was carried out without liquidation generally exists.It will result the legitimate rights and interests of the creditors and shareholders cannot be protected because legal personality of the corporation was destroyed after the cancellation of the company.The people court has not the unified referee scale in the trial of omissive credits and debts because the law is not clear,which results in a large number of different judgment of the same trial which is called "strange case".It makes the courts and judges who implemented for trial different understands about how to dispose caused the company to shareholders,protection of the interests of creditors and Implementation for trial courts and judges of missing claims and debts how to dispose omissive credits and debts,which result we can't protect the legitimate rights and interests of the parties equally.If we let the cases that the omissive credits and debts after the cancellation of corporation were disposed improperly occurred,which will not only damage the intended function of the law firm,but also harm the development of the market economy.For proper settlement of the omission of the credits and debts,this dissertation is depend on an actual case of the people court in the trial of cases which are the omission of credits and debts,which produced an opposite direction on the legal effect because of the different qualification on the subject of proper litigation.There are no clear legal norms in the problems of how to disposal the omission of credits and debts,arising from support or reject the claims of the verdict.Trying to construct the legal rules of disposal cases that the omission of the credits and debts after the cancellation of the corporation to the greatest degree to protect the legitimate rights and interests of the company's shareholders,the creditor and the third person.The objection is to realize the organic unification of legal effect and social effect.This dissertation is divided into three parts.The first part,overview the focus of the dispute about how to disposal the omission of credits and debts after the cancellation of the corporations.The disputes mainly lie in three aspects: one is the eligibility controversy of the subject of litigation after the cancellation of the corporation.Due to different rules about the invalid time of the corporation's legal person qualification in different countries which will produce adaptive dispute of the eligible subject to exercise the creditor's rights and assume the debts of litigation after the cancellation of the company;Second,the disposal of the disputes the omission of the credits after the cancellation of the corporation.Because of different views about whether the omission of credits and debts exist after the cancellation of the corporation so it make a controversy of whether we should fulfill the liquidation.Third,the disposal of the disputes the omission of the debts after the cancellation of the corporation.Whether the subject of liquidating the corporation performs the legal liquidation process will produce different legal effects of controversy.The second part,summarizing the disposal regulations of the omission of credits and debts after the cancellation of the corporation.There exist some deficiencies and problems in our country about how to solve the omission of credits and debts after the cancellation of the corporation through the analysis of the provisions of national legislation and the judicial interpretations of the Supreme People Court of and the application of law of local court rules.In the third part,describing the legal analysis of the omission of the creditor's rights after the cancellation of the corporation in detail.First,make clear to construct the legal disposal of the guiding principles of the omission of credits and debts after the cancellation of the corporation.Including principle of equal protection of shareholders of the corporation,the balance of legal rights and interests of creditors and the principle of crack down on bad faith of the cancellation which is damage to the honest and credit principle of the creditors and the interests of the third party and the principle to achieve social fairness and justice;Secondly,determine the subject of the eligibility litigation.Through the analysis of the invalid time of the qualification of the corporate legal person,identified the procedural rules that the shareholders as eligible subject of litigation and bear the liability;what's more,exploring the way to realize the omission of the credits after the cancellation of the corporation.The omission of the credits of corporation was not destroyed when the cancellation of the corporation but succeeded by the shareholders and they exercise the right of recourse to allocate by the proportion of shares after obtaining the credits.Finally,constructing the liquidation rules of the omission of debts after the cancellation of the corporation.Analyzing respectively to the cancellation of the corporation after the legal liquidation,the cancellation of the corporation without the legal liquidation and the cancellation of the corporation without unliquidated.Constructing different compensation rules according to three kinds of situations of the omission of the debt.