On The Protection Of Creditors' Interests In Forced Liquidation Of A Company

The establishment and improvement of the company's compulsory liquidation system is the need of social and economic development,and it is also the embodiment of the judicial function to ensure the normal operation of the market order.China's "Company Law","Company Law Judicial Interpretation(II)" and the Supreme Court's "Summary of the Symposium on the Trial of Compulsory Liquidation Cases of Companies"(hereinafter referred to as "King Qing Meeting Minutes")established the basic framework of the compulsory liquidation system of Chinese companies However,in the process of handling the compulsory liquidation case,the liquidation group often encounters obstacles in applying the strong clearing procedure,and cannot find a specific operational basis.There is a phenomenon of disconnection and misplacement between practice and legislation.The author takes the compulsory liquidation case that has been personally involved in handling for five years as an example,and explores in detail the inadequacies of the strong-clear procedure from the aspects of the subject,procedure and responsibility of liquidation,from the prior guarantee of the interests of creditors and the suggestion of ex ante relief.And improve China's compulsory liquidation system.In addition to the introduction and conclusion,this article is divided into four parts.The first part is "Problems in the protection of creditors' interests in the company's compulsory liquidation." The company's compulsory liquidation case is a non-litigation case in nature.The announcement procedure is one of the necessary statutory procedures in the compulsory liquidation process and a necessary procedure for all compulsory liquidation cases.Through the analysis of the liquidation announcement in the People's Court Bulletin Network,the case of forced liquidation type shows a trend of growth in recent years,and it also exposes some problems.For example,the longer period of compulsory liquidation procedure highlights the shortcomings of the liquidation group's rules of procedure and the confirmation of creditor's rights.The rules are not perfect.The second part is "the rules of the liquidation group and the protection of creditors' interests".The selection of the liquidation group is the starting point of the liquidation procedure and the ex ante protection of the creditor's interest protection.The Supreme Court stipulates in the minutes of the Qingqing meeting that the liquidation group adopts the voting mechanism of the company's board of directors,because the creditors cannot participate,only the shareholders and the professional knowledge.As a member of the liquidation group,the shareholders have an absolute dominant position in the number of shareholders.When the interests of shareholders and the interests of creditors conflict,the interests of creditors cannot be well protected.Therefore,it is necessary for creditors to participate in the liquidation group and enjoy informed knowledge.The right to participate and supervise.The third part is "Debt Confirmation Rules and Creditor Protection".The confirmation of creditor's rights in the Qingqing procedure is unclear.In the process of confirming the creditor's rights,the calculation of interest has a direct impact on the creditor's interest.Because the law related to compulsory liquidation in China is not clear about the creditor's interest,it leads to some liquidation cases.The liquidation group directly applies the provisions of the second paragraph of Article 46 of the Enterprise Bankruptcy Law of China,and stops calculating interest rates from the “application acceptance”,while others use the calculation to the date of actual payment.Since the mandatory liquidation procedure is generally long-term,if the date of acceptance is only calculated,the creditor's interests will be harmed.Therefore,it should be calculated until the date of actual payment.The fourth part is "liquidation period and protection of creditors' interests".The statutory period for compulsory liquidation cases is six months,and may be extended in case of special circumstances.All the liquidation announcements issued in the People's Court Bulletin Network from January to February 2018 in China were extracted.Combined with the deadline for the completion of the compulsory liquidation case in a certain city,it was found that the trial period of the compulsory liquidation case exceeded the statutory time limit.Because the case of incomplete liquidation is relatively large,the reason is that the actual controller of the shareholders or the company does not legally deliver the company's seal,license,financial account books and other materials,which seriously affects the normal conduct of compulsory liquidation,and should strengthen the liquidation obligor.Timely punishment.The innovation of this paper is to start from the pre-prevention mechanism of creditor protection in the strong-clear procedure,especially the rules of the liquidation group and the rules for the confirmation of creditor's rights,using empirical and comparative research methods to find out the interests of the creditors in the strong-clear procedures.In part,it is recommended to make it clear in the legal provisions.At the same time,it is recommended to introduce the provisions of Article 114 of the Civil Procedure Law in a timely manner for the protection of creditors' rights,and strengthen the timely punishment of directly responsible personnel.The shortcoming is that the number of compulsory liquidation cases is less than that of other civil and commercial cases,and the specific circumstances of each case vary widely.This article only puts forward some individual opinions,in order to attract more attention from the academic circles,which may not be enough to analyze the problem.Comprehensive,especially for the reasons for the long deadline for compulsory liquidation,should be said to be in all aspects.