Research On The Joint Liability Of Liquidators Failed To Fulfill Their Liquidation Obligations

The joint liability established in Article 18(2)of the “Company Law Interpretation II” is both a disciplinary mechanism for the performance of the obligations of the limited company shareholders who have statutory liquidation obligations,the directors of the joint-stock companies and the controlling shareholders,and the creditors' relief mechanism.Due to the fact that the content of the joint liability rule is frivolous and the rules are vague,the referee has interpreted it differently in the application process,resulting in the frequent occurrence of“different cases”.This article is based on judicial practice,through extensive search of referee cases,careful analysis of statistical referee perspectives,examining the problems associated with the application of joint liability rules in practice.Based on the establishment of an independent tort liability status of joint liability,demonstrating "four essentials" rule of identification,constituting unanimous distribution of the burden of proof,in order to provide a practical referee basis for the application of judicial practice.From the perspective of long-term perspective,it is difficult to thoroughly and effectively solve the problems existing in the application of joint liability rules in the application of interpretation theory.This paper proposes legislative proposals for modifying rules on the basis of the study of interpretation theory.In addition to the introduction,this article is divided into four parts:In the first part,The role orientation,the duty norm of the shareholders and directors in the general liquidation and the creditor's relief mechanism.One of the reasons for the liability is the violation of the content of the obligation.This section traces the cause of the occurrence of the joint liability.It conducts research from both the subject of the obligation and the subject of the obligation,and analyzes the roles of shareholders and other subjects in the company's ordinary liquidation and the content of the obligations undertaken.And then,around the "compulsory content",a normative system consisting of the second paragraph of Article 18 of the "Company Law Interpretation II" and the 189 th article of the "Company Law" was constructed.In addition,in order to distinguish the joint liability from other remedies in the company's liquidation,this section will compare the repayment liability with the liquidation liability and compensation liability.The second part,the empirical analysis and question reconsideration of the status quo ofjoint and several liability application.This section empirically analyzes the current situation of the application of the joint liability rule from the four dimensions of the case and the application of law,scope of application,constituent elements,and certification rules.Through examining different practices of different courts in similar cases,it finds and summarizes The problems with the actual occurrence of the liability rule in practice include the fact that the cause and the application of the law are wrong,the examination of the elements of causality is ignored,the viewpoint on the burden of proof is inconsistent,and denying the “no-fault”defense of shareholders,and analyze the causes of the above problems,and shortly explain questions such as whether there are few occurrences and do not need to be discussed in detail,such as whether mandatory liquidation procedures should be pre-emptive or not,and the effective determination of compulsory liquidation procedures in joint and several liquidation cases.The third part analyzes the difficulties in applying the liability for liquidation.On the basis of the problems found in the second part,the focus of this part of the study is to provide a solution to the problem from the perspective of interpretation.Firstly,this section solves the issue of nature of the joint liability,distinguishing "pierce the company veil" rule from joint liability,establishing the second one's independent infringement status,and then discuss two aspects including the establishment of elements and proof of rules.The fourth part is improvement proposal.This section based on the interpretation theory of the joint liability rule in the above,from the perspective of legislation,it proposes to amend the provisions of joint liability rules.