Research On Responsibility Of Liquidation Obligor Caused Liquidation Failure

According to China's "Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China(?)"(hereinafter "Interpretation on the Company Law(?)")the second Paragraph of Article 18.liquidation obligors fail to perform obligations,resulting in the loss of the company's major property,books of accounts,important documents.As consequences,the company cannot be liquidated,liquidation obligor shall be jointly and severally liable for all obligations of the debts of the company.However,the above regulation is not result in the confusion of judicial practice and similar cases received different judgment,its theoretical basis is also controversial and contrary to the value of the laws and regulations of liquidation.Therefore,from the perspective of the author,the system should be abolished and replaced by other laws and regulations in China.There is confusion of the adoption of liquidation obligor's liability in the judicial practice concerning the elements which consist liability,connotations of the above elements,form of the Liquidation obligor's liability,and the legal basis of that liquidation obligor shall be jointly and severally liable for all obligations of the debts of the company.In the theoretical field,researchers put forward the theory of "tort liability" and "disregard of corporate personality" in order to demonstrate the theoretical basis of the above regulation.However,all of the above theories are not reasonable.Current laws and regulations do not comply with the value of laws and regulations of liquidation that it is the system to verify rather than ensure the solvency of the company which depends on the amount of property of the company.The maximization of creditor's interest is not reasonable.As a subject of the market,the debtor should shoulder the burden including examine the credit and ability of paying back.The contract law is the regulation that is supposed to ensure the performance of debt and the responsibility caused by the partial or entirely non-performance of the debt.As a part of the company law,it is improper for the system of liquidation to burden the function of the contract law exceedingly.However,the function of current laws and regulations is to ensure that all creditors can be repaid which deviates from the value of liquidation system which derived from the misunderstanding of liquidation system constructed by China's laws and regulations.The above situation can be derived from the lagging construction of the liquidation system and the unbiased understanding of dormant company.In the situation that the company fails to liquidate,what kind of responsibility shall the liquidation obligor bear?First of all,from the perspective of the author,the foundation of liquidation obligors and the definition of connotation of the liquidation failure should be illustrated.Based on the original legal nexus between the liquidation obligor and the company,on the one hand,liquidation obligor shall actively serve as members of the liquidation committee and do not hinder the the set up of liquidation group.On the other hand,they shall not take advantage of their positions against the lawful rights and interests of the company.The loss of main property,books of accounts and important documents of the company is a condition of liquidation failure.Liquidation failure is the objective state that liquidation process of the company is hindered,in which the lawful rights and interests of the stakeholders are diverse,but whether they are damaged and the specific scope of the damage is uncertain.Under the certain circumstances,in which way can the lawful rights and interest of the stakeholders be protected?In order to compensate the stakeholders of the company who suffers from the uncertain situation of lawful rights and interest,there are two dominating opinions in the field of theory:"tort liability" and "disregard of corporate personality”.However,either theory is plausible.From the aspect of remedying the stakeholders with the tort law,on the one hand,the damage caused by the liquidation failure resulting from the loss of main property,books of accounts and important documents is uncertain,so as the element which consist the liquidation obligators' responsibility,the damaged caused by the unlawful behavior of the liquidation obligor is irreplaceable.On the other hand,there will be controversy of the connotation of each element consisting the responsibility of the liquidation obligor with the adoption of the tort law.Consequently,the judgment in practice will be arbitrary so that the liquidation obligor will fall in a trap which they might break law and be responsible for their behaviors randomly,which restrict their freedom of behavior.The fundamental function of compensating damage cannot be realized as well.The adoption of the tort law is not reasonable.From the aspect of disregard of corporate personality,firstly,the subject of disregard of corporate personality is different from liquidation obligor.It still needs to be demonstrated whether subject exceeding the scope in disregard of corporate personality fit the regulation and be jointly and severally liable for all obligations of the debts of the company or not.Secondly,from the aspect of behavior,the demonstration of behavior which fulfilling the conditions of disregard of corporate personality is complicated and intricate,but the behavior of liquidation obligor is across but not overlap the behavior of disregard of corporate personality.Thirdly,from the aspect of subjective element,the judgment of the responsibility of the liquidation obligor concerns the objective behavior mode instead of the subjective situation of the liquidation obligor which deviates from disregard of corporate personality.Fourthly,from the principle of adoption,disregard of corporate personality always be used in exceptional or individual cases,meanwhile the liquidation obligor's responsibility always adopt on a regular basis.So the disregard of corporate personality is not reasonable as well.As a consequence,"Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China(?)"the second paragraph of Article 18 should be abolished,the protection of the right and interest of the company and stakeholders can be replaced by laws and regulations regarding the restriction of the company's shareholders,actual controllers,directors,the liquidation committee.At the same time,the laws and regulations above can ensure the maintenance of the order of liquidation and avoid the company failing in liquidation,which lead to the uncertain state of the lawful rights and interests of related objects.