Revisions On Company Liquidation Obligor Provisions

A perfect legal system for the market economy should focus on not only the positive incentives such as company establishment and company governance,but also a complete market exit mechanism.The company liquidation is a mandatory procedure for the company to withdraw from the market,and the subject of liquidation plays an important role in the company's liquidation.In 2008,the Supreme People's Court's Provisions on the Application of Certain Issues in the Company Law of the People's Republic of China(hereinafter referred to as the “Company Law Interpretation(II)”)for the first time provided for the relevant provisions of the liquidation obligor and clarified the subject of liquidation obligations of the company.With the continuous improvement of the company's limited liability,the company's ownership and control rights are continuously divested,and the modern company law gradually establishes a relatively isolated legal protection system between the company and its shareholders.In 2017,the General Principles of the Civil Law of the People's Republic of China(hereinafter referred to as the "General Principles of Civil Law")was promulgated,and the dual legislative system of the liquidation obligor and the liquidation group was formally established,and the directors were the liquidation obligors.Based on the discussion of the scope of the company's liquidation subject and the constitutional elements of civil liability,this paper examines the legislative provisions of the extraterritorial liquidation subject,examines the legislative provisions ofChina's liquidation subject and civil liability,and studies judicial precedents,with a view to discovering that the drawbacks of liquidation obligor system in both legislation and justice,discussing the necessity and feasibility of the return to the unified system of the legislative subject of China's liquidation,and provides specific reconstruction proposals in order to improve the company's liquidation system.This essay is divided into four chapters:The first chapter initially introduces the conceptual differences between the company's liquidation obligors,liquidators and liquidation groups,and then discusses the dispute between the unified legislative system and the dual legislative system,and discusses the differences between the two and the general provisions of the liquidation subject of the civil law system and the common law system,and finally briefly review the historical evolution of the China's liquidation subject from the unified system to the dual system.The second chapter mainly analyzes the current legislative provisions and judicial judgments of company liquidation obligors in China,analyzes the current provisions of liquidation obligations and civil liability in the current law,and points out the inadequacy of shareholders and actual controllers as liquidation subjects,and discuss the basis and constituent elements of the three civil liability of the liquidation obligation subject.Subsequently,through the empirical analysis of more than 300 civil judgments,a conclusion will be reached on the relevant data and the trend of civil judgements for current judicial practice of the scope of liquidation subject and civil liability,which is for the purpose of providing data support for the research.And author summarizes the drawbacks of the current company's liquidation obligor system based on the discussion and data of the above.Among them,the drawbacks of the company's liquidation obligations are mainly legislative defects,including the absence of the connection between the liquidation obligor system and the appointment of the liquidation group,the lack of recognition of the company's constitutional liquidation subject results in the excessive intervention of the company's autonomy as well as the irrationality of shareholders as the subject of legal liquidation.The drawbacks of the civil liability of the company's liquidation obligations are mainly theproblems in judicial practice,including the failure of the liability provisions in practice and the lack of identification of exemption.The third chapter is mainly the comparative law analysis of the liquidation obligor system.Since the liquidation obligor belongs to the unique concept of our country's legislation,the author analyzes the civil liability of the liquidation entity and the liquidator in the EU,the United Kingdom,Germany,France,the United States and Japan.The law stipulates,and draws on the reorganization of the system of liquidation obligors in China from the experience of extraterritorial legislation.The fourth chapter analyzes the necessity and possibility of the reconstruction of the liquidation obligor system,and proposes that the liquidation obligor system and the liquidation group appointment system should be integrated,and the returning to unified system of the liquidation subject could improve the liquidation efficiency.Apart from that,the directors should be legal liquidation subject,giving the priority to constitutional liquidation subject.In the judicial aspect,by refining the distribution of burden of proof in liquidation disputes and clarifying the legal defense of the liquidation subject to improve the reconstruction of the liquidation obligor system.