The Institutional Coordination Of The Company's Statutory Liquidator And Liquidation Obligor

Through researching and analyzing on the subject scope and duties of statutory liquidator of the company in the comparative laws,it is clear that the two major characteristics of the statutory liquidator system are "the subject scope of the company's statutory liquidator is stipulated in laws" and " the company's statutory liquidator is obliged to initial the liquidation process based on the natural interpretations of laws”,and the provisions of Article 183 of Company Law of the People's Republic of China(the “Company Law”)also meet the characteristics hereinabove.Therefore,the statutory liquidator system shall be deemed to be established in the Company Law.Since most provisions of directors can be quasi-applied to liquidators and it is a comparative law practice for directors to act as the company's statutory liquidator,sentence 2 of Article 183 of the Company Law that shareholders shall be the company's statutory liquidator is questionable.Prior to the effectiveness of Article 70 of General Rules of the Civil Law of the People's Republic of China(the “General Rules of the Civil Law”),according to the relevant provisions of Provisions of the Supreme People's Court on Several Issues relating to Application of the Company Law of the People's Republic of China(II),all shareholders of a limited liability company,controlling shareholders and directors of a company limited by shares are the company's liquidation obligors respectively.Due to difficult clarifications of the controlling shareholders beforehand,it shall not be regarded as the liquidation obligors herein.After Article 70 of the General Rules of the Civil Law comes into effect,directors shall be construed as the company's liquidation obligor thereinafter.The company's liquidation obligor shall only be obliged to start the liquidation process,which is to organize a liquidation group in a timely manner and to start the liquidation activities after the company's dissolution.The company's liquidation obligor shall not be responsible for neither safeguarding any important documents such as the company's main property and account books following the company's dissolution nor assisting the work of company's liquidators,etc.There are numerous differences and similarities between the company's liquidation obligor and the company's statutory liquidator,and they shall be coordinated by means of legal interpretation methods such as the fiduciary duties of directors in theory and comparative law interpretation.The director's fiduciary duties consist of two parts including the director's duty of care and duty of loyalty.The former emphasizes that directors shall diligently make corresponding management decisions on the basis of obtaining sufficient information with necessary attentions in order to meet the requirements of business judgment rules,which is corresponded to the word"DILIGENC(??)"stipulated in Article 147 of the Company Law;the latter emphasizes that directors shall act in the best interests of the beneficiaries(generally refers to the company and all its shareholders collectively)and act faithfully,corresponding to the word"LOYALTY(??)"stipulated in Article147 of the Company Law.Although the company's creditors exceptionally become one of the objects of directors'fiduciary duties when the company becomes insolvent,after the company is dissolved the special interest status per se requires directors to bear the fiduciary duties to the company's creditors at this very point of time instead of waiting until the company actually becomes insolvent.As the objects and contents of directors'fiduciary duties have changed significantly following the company's dissolution,directors are more suitable than shareholders to perform statutory liquidation duties,including initiating liquidation process and performing specific liquidation matters.It is questionable for the provisions of sentence 2 of Article 183 of the Company Law to be implemented,which differentiates the subject scope of the statutory liquidator among companies of different natures and requires shareholders to act as the company's statutory liquidator.The method of comparative law interpretation and the theory of directors' statutory liquidation duties can be referred,drawing the conclusion that directors are the company's statutory liquidator interpretatively;the company's liquidation obligor system shall be retained and reasonable provisions of the company's statutory liquidator system shall be learnt to further modify and perfect the current system of company's liquidation obligor legislatively in terms of two aspects: modifying the duties of the company's liquidation obligor and respecting the company's autonomy of will.