Comparative Study On The Judicial Dissolution System Of Chinese And Japanese Companies

Aiming at opening the system of judicial dissolution of companies,which is the last relief way for small and medium-sized shareholders,and safeguarding the interests of shareholders such as the recovery of investment,this paper makes some comparison and analysis on the judicial dissolution system of Chinese and Japanese companies,in order to be able to find out and prove the shortcomings of the current provisions,and put forward suggestions to them.This paper begins with the process of introducing this system into the company law of China and Japan and the viewpoint of scholars,and analyzes its legal basis.It is clear that there is a realistic need for the revision of China's corporate law to join this system,and Japanese scholars have unanimously recognized the rationality of granting shareholders the right to claim dissolution in closed and common companies,such as limited liability companies,through debate.At the same time,both countries have established that the system includes the purpose of protecting the rights of minority shareholders.In this paper,from the applicable object,the subject of the claim,the cause of dissolution,the pre-conditions and the prevention of abuse of five aspects,through the analysis of the legal provisions and practical cases of the two countries,found obstacles to the realization of the purpose of the system.By comparing the similarities and differences between the Chinese and Japanese systems and their influence in judicial practice,this paper puts forward some suggestions for improving the protection of minority shareholders ' rights and interests.First,the applicable object aspect.The legal provisions of the judicial dissolution system in China do not have a clear scope of application,so the limited liability company and the incorporated corporation can be applied.However,from the results of the case statistics,the vast majority of the companies involved in the company are limited liability companies,sporadic emergence of the joint stock Limited company is not listed.The provisions of the Japanese company law on joint-stock companies are strict with the share company,although due to the different nature of the two types of companies(later detailed description),but there is no shortage of views that "locking company" is more similar to the share of the company,should be properly relaxed. Therefore,the application of China's judicial dissolution system in practice is in full compliance with the "locking company",perhaps in the latter mentioned in the dissolution of the subject matter and other aspects of appropriate relaxation to protect minority shareholders,or according to the applicable object classification provisions.Second,the main body of the claim,the laws of both countries stipulate that more than 10%of the shareholders have the right to claim dissolution.Through the case statistics,we can see that the shareholder litigation request with small shareholding ratio seems to be more difficult to support the Court,which is related to the determination of the cause of dissolution and so on.Third,the cause of dissolution is the key to determine whether the company dissolves and the rights of small and medium-sized shareholders can be protected.Therefore,the provisions of the two countries in this regard can be said to account for the largest number of judicial dissolution system,but also in accordance with economic development,practical needs and so on,through judicial interpretation,typical cases and other forms of continuous guidance and improvement of the standard of judgment.Scholars from both countries are also constantly discussing and studying the causes of dissolution.Combining with the provisions of our country,this paper divides the criteria of dissolution of judgment into two categories,"serious difficulties in the internal management of the company" and "other serious difficulties in the operation and management,and compares the similarities and differences between the "difficulties in the implementation of the company's business" and the "obvious improper management and disposition of the company's property".Combined with the cases in their respective judicial practice,this paper analyzes whether the second dissolution criterion,which is expected to protect the rights of minority shareholders,is sufficient to provide a final way of self-relief for the oppressed minority shareholders.Fourth,in the former conditions although the two countries differ slightly in terms of the provisions of the legal provisions,the general understanding is that there is no other way for the dissolution of the sentencing company to solve the current predicament.However,the case of China's decision not to dissolve seems to be too strict in the determination of this requirement,and not only as a formal examination of the views of the Supreme Court can be.Fifth,in order to prevent shareholders from suing in bad faith,Japan has stipulated compensation and guarantee system,and China has no special provisions to prevent shareholders from abusing the right of action in addition to preventing shareholders from abusing shareholders ' rights in the company law.Through the comparative analysis,generalization and suggestions of the above five aspects of the judicial dissolution system between China and Japan,in order to make the judicial dissolution truly the last way for the oppressed minority shareholders to be redeemed smoothly.