| Judicial dissolution system,as the last resort to ensure that minority shareholders quit the company,is of great significance to safeguard their interests.Although the correspondent stipulation on judicial dissolution has been established in Article 182 of the Company Law of China and Article 1 of the Second Judicial Interpretation of China,the applicable standards of the provisions in judicial practice are not uniform,for the content of the provisions is rather ambiguous.Since then,the relevant cases of the Supreme People’s Court have also clarified the identification standard of judicial dissolution,but the application effect is not very ideal.The reason is that different courts have different understandings on the functional orientation of the judicial dissolution system,which leads to the phenomenon of different judgments in the same cases in the application process of the system.In the face of numerous difficulties in the application of law in judicial dissolution cases,it is of great significance to further clarify the identification standards of relevant issues through analyzing specific cases.In "the dispute case of judicial dissolution between R company and D company sued",this paper finds that when the court determines "serious difficulties in operation and management",it simply takes the decision of shareholders’ meeting as the quantitative standard and considers the company’s operating conditions to determine this factor.There are different understandings of the scope of shareholders and different standards for identifying this element when determining that "continued existence will cause devastating losses to shareholders’ interests".There are some problems in the identification that "other ways can not solve the problem",such as the insufficient strength of the existing relief ways and the inconsistent positioning of the nature.By referring to the relevant experience of domestic scholars and foreign legislation,the following conclusions are drawn: when identifying "serious difficulties in the company’s operation and management",we should continue to take "human compatibility obstacle" as the standard on the basis of re-understanding the effectiveness of the judicial dissolution system.In addition,due to the complexity of the "human compatibility obstacle",it is more appropriate to take the "reasonable expectation of shareholders" as the principle when identifying the "human compatibility obstacle".When determining that "the continued existence will cause significant losses to the interests of shareholders",the functional positioning of the protection mechanism for small and medium-sized shareholders should be clarified first.On this basis,the scope of shareholders should only refer to the plaintiff shareholders,and the status of the interests of small and medium-sized shareholders can be taken as the consideration standard when identifying this element.In determining that "it can not be solved by other ways",the compulsory equity transfer of Anglo-American law system can be introduced to alleviate the limitations of "other ways",and based on the policy of lenient entry and stringent exit,clearing the elements can be either as the prepositional procedure to start judicial dissolution lawsuit,also can be used as one of the elements of the court’s decision to dissolve the company. |
