Research On Civil Liability Of Liquidation Obligors For Delay In Liquidation

The orderly and healthy development of the market economy requires not only a relatively easy and free market access system,but also a consummate market exit mechanism.Whether a company can comply with the regulations and withdraw from the market smoothly influences the rights and interests of shareholders and other investors,and also relates to the protection of the legal rights and interests of corporate creditors,the reconfiguration of social resources,and the stability of the economic order.However,under the modern socio-economic environment,it is common that companies which shall be liquidated after dissolution but fail to do so.Some companies even maliciously take advantage of the dissolution to escape debts,infringing the legitimate rights and interests of creditors and endangering social and economic order.In view of this,“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)”stipulates that the company's creditors may claim joint and several liquidation or compensation or liabilities against directors,shareholders and other entities in the event of the defective liquidation or the liquidation failure.However,the judicial interpretation doesnot clarify the basis of the right to claim,the constitutive elements and the nature of liability of the system itself,which leads to the different understanding and applications of this system in academia and judicial practice.Some cases in judicial practice even inappropriately break through the principles of corporate legal personality independence and limited liability of shareholders,which cause the imbalances between the protection of creditors and shareholders' interests in the company liquidation and other judicial proceedings.This article takes the first stipulation on “liquidation obligors” in the “General Provisions of the Civil Law of the People's Republic of China” as an opportunity,and with reference to the “Minutes of the National Courts' Civil and Commercial Trial Work Conference” related provisions on dissolution and liquidation,intends to redefine the scope of the subject of the liquidation obligors,and further to clarify the nature of the liquidation obligors' negligence in liquidation,the constitutive elements of civil liability of the liquidation obligors,the forms of bearing the internal and external liabilities by the majority of liquidation obligors as well as the application of limitation of action.The body of this article is divided into five chapters.From the beginning,the first chapter sorts out and summarizes the legal development process and the current situation of the identification of the composition of the company's liquidation obligors,and the impact of the introduction of the “General Provisions of the Civil Law of the People's Republic of China” on the rules for the determination of the subject of the liquidation obligors.The scope of the subject of the liquidation obligors is redefined with reference to the analysis of existing deficiencies in the define rules of liquidation obligor,the study of comparative law,the analysis of the source of the liquidation obligation as well as the rationality of the establishment of the liquidation obligor.The second chapter compares between the two acts of delay liquidation and abusing the corporate independent personality from various perspectives such as the scope of the subjects,the applicable conditions,the connotation of liability and the value of the system.In addition,the second chapter also demonstrates the rationality of the theory of tort of creditor's rights from multiple perspectives,such as combing the tort law protection system and the logical structure of judicial interpretation and optimizing the burden of proof.Finally,it clarifies the nature of the liquidation obligors' delay in liquidation and the basis for requesting it to bear civil liability.The third chapter analyzes the main constituents of civil liability for liquidation,and on this basis,analyzes the specific identification standards of "fault","unable to liquidate" and "causality" and the possible defenses and exemptions of the liquidation obligors.Following with the third chapter,the fourth chapter defines the nature of joint infringement by the majority of the liquidation obligors inthe defective liquidation or the liquidation failure.,which clarifies the form and scope of civil liability borne by the majority of liquidation obligors.On the basis of the foregoing,the fifth chapter focuses on the procedural issue of limitation of action.Several models to determinate the starting point of the limitation of action has been summarized by sorting out the judicial practices,and then points out the existing problems of these models and clarifies the principles and reference factors for the determination of the starting point of limitation of action.Finally,under the existing legal system,several suggestions are provided with reference to the comparative law to improve the limitation of action system of the civil liability brone by the liquidation obligors.