Research On The Liability Of The Liquidator Of A Limited Company For Failing To Liquidate And Causing The Company To Be Unable To Liquidat

A company’s dissolution is the process by which a company terminates its legal personality.4 In non-bankruptcy liquidation,a large number of companies do not organize liquidation after dissolution and do not perform the claims that should be resolved,which seriously infringes on the interests of the majority of creditors and even small and medium-sized shareholders.However,compared with bankruptcy liquidation,non-bankruptcy liquidation has received less attention,and the theoretical and practical circles in China have studied this.With the continuous growth of Chinas economy,there are more and more legal disputes in liquidation,which has become an important issue in practice.Chinas Company Law stipulates that the liquidation team of a limited liability company is composed of shareholders.The Civil Code 5stipulates the liability to be borne by the liquidation obligor when it fails to perform the liquidation obligation in a timely manner.Interpretation II of the Company Law also stipulates the liquidation obligation of the shareholders of a limited liability company for neglecting to perform their obligations.6However,due to the fact that the above provisions are too general and do not clarify the specific composition of liquidation liability,the understanding of its application is not uniform,especially in court judgments,the phenomenon of different judgments in the same case has appeared repeatedly,which has attracted the attention of the Supreme Peoples Court.In the Minutes of the Nine People’s Republic of China,released in November 2019,the SPC elaborated in depth on the liquidation responsibilities of the liquidation obligors of limited liability companies,and intended to clarify the issue of negligence in liquidation and the determination of causality.However,in judicial practice,the determination of the liability of the liquidation obligor of the Public Company limited company as a result of the negligence in performing the liquidation obligation still faces many problems.By reviewing the legislative provisions on civil liability for negligence in liquidation in China,this paper reads the 294 effective judgments on the negligence of liquidation obligors of limited liability companies in 2021 published on the China Judgment Documents Online,and selects 157 sample cases from them It excavates some key issues in trial practice,and selects several representative issues from these issues for in-depth analysis.This paper finds that in the sample cases,there are phenomena such as unclear judgment of causality,unclear determination of unable liquidation,and inconsistent starting point of the limitation period for joint and several liquidation liability.By the analysis of those issues one by one,it is found that in practice,the causes of causality are mainly divided into two types: there is no causal relationship between the loss of the companys main property or the loss of the main account books.In the enforcement procedure against the companys debts,it is found that the company has no property available for enforcement and whether the termination of the enforcement procedure can be the focus of the disagreement on the judgment of causation,and the author believes that the termination of the enforcement procedure cannot be a blocking cause of causation,and the failure to execute to the property is not equivalent If a company has no assets,it shall make a comprehensive determination of causality based on various circumstances.As for the issue of non-liquidation,in practice,there are contradictory judgments on the burden of proof that cannot be liquidated,and the author believes that the burden of proof should be appropriately reversed,and in specific circumstances,the liquidation obligor bears the corresponding burden of proof.The determination of non-liquidation does not require prior procedures,and the type determination of the inability to liquidate shall be carried out.When establishing the starting point of the limitation period for joint and several liquidation liability,the principle of "knowing or should know that the company cannot be liquidated" should be taken as the principle,and the specific criteria in practice include company dissolution,compulsory liquidation procedures,compulsory enforcement procedures,etc.A system for registering the dissolution of a company should be established to improve the limitations involving the joint and several liquidation liability of the liquidation obligor.