On Liquidation Group's Civil Liability Of Violating The Obligation Of Notification And Announcement

According to article 11 of Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China(II),when a company is being liquidated,the liquidation group shall notify the company dissolution and liquidation to all the known creditors according to Article185 of the Company Law,and make an announcement on a national newspaper or a provincial newspaper that has certain influence in the place where the company is registered based on the scale and business territory of the company.If the liquidation violates the previous statement,the members of the liquidation group shall assume the liability of the losses resulted therefrom.Whereas,what is the nature of the liability? Is it a tort liability,or contract breaking liability,or some other kind of liability? What's kind of liquidation group member shall assume the liability?What's more,what are the constitutive requirements of the liability? Can creditors get a full compensation,or just a limited compensation within residual assets of the company? The theoretical cycle of law has not reached a unanimous opinion on those questions.This paper thinks that there are three perspectives to view the nature of liquidation group member's liability.In juridical practice,the People's Court settle those questions form the point of individual cases.Therefore,some similar cases did not have similar judgment.Thereupon,this paper researches the liability ofliquidation group members of violating the obligations of notification and announcement through individual cases and theory of law.About methodology,both text study and empirical research are important.This paper,according teasing the existing literature about damages of liquidation and violating the obligation of notification and announcement,extracts related viewpoints and research methods.This paper,according studying judicial precedents about the violating of notification and announcement,and interpreting the law norms of liquidation group's violation of obligation of notification and announcement again,proves a series of conclusion on the basis of Rechtsdogmatik.This paper can be divided into following six parts:The Introduction is about the background of this paper's research,it includes research questions,purpose of research and methodologies of this paper.Chapter One studies the nature of the civil liability of liquidation group violating the obligations of notification and announcement.Through analyzing the liability from the perspective of tort liability,this paper points out that it is not propriety to interpret the liability into tort because of conflicting to China tort law.This paper deems that notification and announcement is a kind of legal debt.When the debt is not satisfied,liquidation group should be responsible for it.Chapter Two studies the subjects of liquidation group.This paper indicates that the liability's subjects include Obligee and obligor.The Obligee are creditors and shareholders who suffer damages form liquidation group's unlawful actions of notification and announcement.And the obligor is liquidation group members including those who are shareholder of company and those who are not.In addition,an organization can appoint a natural person holding the post of liquidation group member.Chapter Three studies the constitutive requirements of liquidation group members' liability.This paper shows that the constitutive requirements includes subjective aspect and objective aspect.The subjective aspect includes fault and gross negligence through judging action from the perspective of objective imputationtheory.The objective aspect includes the action of obligation violating of notification and announcement,damages of notification and announcement violating and casual relationship of the two previous factors.Chapter Four studies the confines and methods of bearing liability of the liquidation group members 'liability for violating notification and announcement's obligation.This paper indicates causal relationship of liquidation group members' liability should consider the aim of law and positive causal relationship.Liquidation group members shall bear joint liability in external.However,they can make an inside distribution of their liability according their fault's degree.The part of Conclusion points out the questions and space deserving a forward moving about the research apart from several conclusions of this paper.