The Selection About Liquidation Obligor In Company

The liquidation obligor play the role of ’vanguard’ in the whole liquidation procedure,and the specific scope of the liquidation obligor should be the primary problem that needs to be solved in the liquidation system.Determination of liquidation obligor should follow the principles of establishment objectives of company,benefit connection,coherence between right and obligation,correspondence between benefit and responsibility and effective protection of creditors’ interest,and take the fiduciary duties as well as internal control of the company as the legal basis,and all of members of shareholders meeting and members of board of directors conform to the above requirements,but other possible subjects,certainly,cannot be excluded absolutely.Occupational characteristics of board directors,such as specialized number of directors,extensive position power,fiduciary duties to company and symmetrical information,make directors liquidation obligor inevitably;when unable to fulfill the basic liquidation obligations,the liquidation obligor should take the corresponding liquidation responsibilities to the company naturally;in some cases,however,the responsibility immunity toward board directors can be allowed,and for instance,the directors have fulfilled duty of loyalty and duty of care in during liquidation,and board directors fail to organize the liquidation group but have not harm the interest of creditors,and the period of limitation on creditors’ right of claim for infringement indemnity has expired and others.Shareholders shoulder the fiduciary duties to creditors,and choosing the shareholder as liquidation obligor is considered as the supplement to shareholders’limited responsibility,but it does not imply that all of shareholders are acceptable to be the liquidation obligor,especially medium and small shareholders who are regraded as the same ’victims’ as creditors during liquidation,so it is unfair if they are responsible for liquidation;and furthermore,the fact that minor shareholders have difficulties in exercise their voting right as shareholders makes them unable to be liquidation obligor,but their ’legal representative’ should be seen as liquidation obligor during liquidation;different form the two kinds of shareholders above,as the persons who assure legal delisting of company,controlling shareholders assume the compulsive liquidation obligations which cannot be refused or exempted,but it does not imply that controlling shareholders take liability for satisfaction absolutely,and the application standards of liability for satisfaction should be strict so as to prevent expansion of application of liability for satisfaction.Apart from the subjects above,there are other possible subjects who can be acceptable as liquidation obligor.For example,after the dissolution of company,actual controller who organizes liquidation has no direct legal duties,but where creditors can prove by evidence that there is an actual controller who takes advantages of the actual control of the company and causes the damaged properties of company,impossibility of liquidation and other facts,the actual controller should still take the liquidation responsibility;for another example,competent authorities of company have qualifications of liquidation obligor in the planned economy but it is appropriate for the authorities to play the role of ’shareholder’ and the like in market economy,the disappearance of rights deprives the authorities of the possibility of being liquidation obligor;for another example,during the contract management,leasing management and delegation management of enterprises,the right to make decision and right of management which are enjoyed by shareholders meeting and board of directors will be restricted to some extent and even frozen,and at this time,the contractor,leaseholder and trustee who have the actual control of the company should be listed as liquidation obligor.