The Goint And Several Liability Of The Shareholders Of A Limited Liability Company

The company law and its judicial interpretation ii stipulate that if the shareholders of a limited liability company fail to fulfill the liquidation obligation and the company cannot be liquidated,they shall bear joint and several liabilities for the debts of the company.According to the theoretical basis of such joint and several liabilities,there are two opinions: one is the denial of corporate personality;the other is the infringement of creditor's rights by the third party.The denial of corporate personality in the company law needs to abuse the limited liability of shareholders and the independent status of the company as a legal person.At the same time,according to the provisions of article 20 of the company law,the subject of the denial of corporate personality in the company law is the shareholder.As for the third party's infringement of creditor's rights,there have been many disputes about whether creditor's rights can be regarded as the object of infringement in China.If so,is it protected as a right or legal interestby tort law?What is the main body limits that liquidation obligor joint and several pay off responsibility? According to the existing laws and regulations,the obligatory liquidators of a limited liability company are all shareholders,and the contents of their liquidating obligations are the same.Their liquidating obligations include timely initiation of the liquidating procedures,proper custody of the company's majorproperties,books and important documents,etc.Does such regulation accord with the demand of real life? Does it balance the interests of shareholders and external creditors? Supreme Court guiding case no.9 gives the answer: shareholders can not take no control over the company to fight against the creditors' request that they assume slack in performing the liquidation obligation.However,according to the related cases,liquidating obligations shall be distinguished,law cannot stand,in fact,some small and medium-sized shareholder's inability to control the company,it is unable for them to participate in corporate governance,it is the same for the company's main property,books,important documents.On the contrary,there are the litigation of shareholders' right to know,it can prove that the shareholder can notcontrol the important documents,books,andthe company's main property.And sometimes even filed a lawsuit to the company for their right to know,in this case,Unreasonable requirement that all shareholders have the obligation to properly keep the company's main property,accounting books,important documents,etc.At the same time,the limitation of limited liability company's liquidation obligor to shareholders is also worth discussing.Company directors have fiduciary duty to the company,which has been existing since the date of establishment of the company.However,the existing laws do not specify how the fiduciary duty of company directors is embodied in the liquidation of the company.According to the content and requirements of fiduciary duty,in the liquidation stage,the company still exists,but only has the ability to liquidate.In the event of the dissolution of the limited company,during the period when the shareholders of the company have not started the liquidation procedure and set up the liquidation group,what obligations should the company directors fulfill? Company directors is the executive organ of the company,to participate in the governance and management of the company's internal.For the company's business,theyare the most familiar,if they can be active in the presence of dissolution to perform its obligations,including safekeeping company mainly property,books,important documents,etc.,they can be better provide convenience for subsequent liquidation procedures.It is not out of nowhere for company directors to act as obligatory liquidators of companies.Based on overseas experience,theliquidation is mostly initiated and presided over by company directors,etc.Moreover,the general Provisions of the Civil Law also stipulate that the liquidation obligation of a legal person shall be the directors,directors and other executive agencies or members of decision-making bodies of the legal person.As a kind of civil tort liability,the obligor of liquidation of a limited liability company should meet the general requirements of civil tort liability.Limited liability company liquidation obligor components of joint and several liability is divided into the objective factor and subjective factor,objective elements is delayed in performance of the obligations lead to liquidation,through analysis to existing rules,the subjective element to the liquidation obligor several and joint liability did not make a clear regulation.Therefore,is there a subjective requirement for taking on joint and several liability? Can deliberate and negligent be subject to the subjective requirements of the liquidation obligor to bear the joint liability?Finally,based on the research and discussion of the above problems,this paper puts forward some opinions and suggestions on the joint and several liability of the liquidators,trying to solve the problem of joint and several liability of the liquidators of the existing limited liability companies.