Research On Unliquidated Debts After The Cancellation Of The Company

The termination of the company is an important part of the Company Law.According to Company Law,the termination of a company must go through dissolution,liquidation and cancellation.Among them,the liquidation is the most important procedure in the company’s termination.In fact,the liquidation doesn’t work well in practice.Therefore,there are still a large number of unliquidated debts after the company’s cancellation.Company Law only mentions the liability of the liquidation group.In judicial practice,judges make fair judgment guided by Interpretation of the Company Law.However,Interpretation of the Company Law,the effectiveness of whom is limited,only emphasizes the shareholder’s civil liability.It can not help to clarify the rules for the disposal of unliquidated debts after the company’s cancellation.It contradicts with the Company law systems,instead.In order to explore the existing problems,this article analyzes the current solutions of dealing with unliquidated debt after the cancellation of the company,by using a variety of analysis methods.The article aims to put forward some suggestions to optimize the relevant regulations.The legal consequence of the company’s cancellation is that the company can not continue to perform its contractual obligations,which can not cause the elimination of the debts according to Civil Law.Therefore,the specific problems should be discussed case by case.On the one hand,the academic circles has not reached a consensus whether the unliquidated debts have been eliminated if the company goes through legal liquidation before its cancellation.Company Law and its judicial interpretations do not make effective provisions for dealing with unliquidated debts after the company’s legal liquidation and cancellation.On the other hand,Company Law and its judicial interpretations do not work well in dealing with the unliquidated debts after the company’s illegal liquidation and cancellation.The judicial practices have no clear legal norms and appear to common case of different judgments.After studying the representative legal provisions of the two legal systems,it is found that the extraterritorial provisions,such as the selection and responsibility of the liquidation group,insurance system etc,can inspire us to improve the way of dealing with the unliquidated debts.Back to Chinese regulations of dealing with the unliquidated debts after the company’s cancellation,it can be improved in the following aspects:Firstly,in terms of dealing with the unliquidated debt caused by undeclared creditors,Supplementary Declaration System can be optimized.The Second Reminder and Declaration System provides another chance for creditors to claim their rights.If they missed the chance,they should bear the unfavourable result,which means the debts will no longer be paid off.Secondly,in terms of dealing with the undetermined debts after the company’s cancellation,Future Payment Guarantee System can be established,which means the shareholders should bear the liabilities within the range of the remaining property allocated from the company.At the same time,by learning from foreign advanced experience,Liability Insurance System and Liability Fund System can be established,which provide another way for creditors to claim their rights.Finally,in terms of dealing with the unliquidated debts caused by illegal liquidation,the directors are doomed to be the liquidation obligors.The controlling shareholders are assumed to be a statutory liquidation obligor when shareholders decide to dissolve the company.It is clear that the nature of the civil liability undertaken by the liquidation obligor and the liquidation group is tort liability.Thus,the paper refines the recognition and sharing rules of civil liability of liquidation obligors and members of liquidation group.Besides,the paper refines the applicable rules of commitment.