Research On The Scope Of The Subject Of Liquidation Of Limited Liability Companies

The concept of "liquidator" in China lacks a clear and unified legal definition,which is mainly reflected in the problem of distinguishing the substantive concept of "liquidator" and the problem of clarifying the scope of the subject of liquidator..And with the revision and new introduction of laws and regulations,the scope of the subject of the liquidator has become more and more confusing.The Civil Code,the Company Law,the Second Interpretation of the Company Law and the Ninth Civil Code have different provisions and different opinions.The Civil Code is general and includes members of executive bodies and decision-making bodies in the scope of liquidation,while Interpretation II of the Company Law only places shareholders in the position of liquidation duty bearers,and the Nine Civil Minutes require judicial trials to pay attention to the problem that minority shareholders may unfairly bear liquidation duty......The contradiction between laws and regulations may directly lead to the confusion of company subjects in practice,inequity of responsibility between different subjects and the negative attitude of neglecting to open liquidation.After sorting out,there is a general unity in the duties of liquidation duty holders only: forming liquidation team and opening liquidation.This duty can be deconstructed objectively.In order to clarify the similar concept,we can mirror from the liquidator system in Japan,Germany and the United Kingdom,each of which has distinctive features and reflects the problems existing in our liquidation obligor system.Germany and Japan,as representatives of the civil law system,attach importance to the problem of "zombie enterprises",so the same "statutory liquidator" to consistently assume the responsibility of opening liquidation and execution of liquidation,improve the efficiency of liquidation,and pay attention to the communication of liquidation information,the timely introduction of external stakeholder It also pays attention to the communication of liquidation information,timely introduction of supervision by external stakeholders,and the establishment of a defense mechanism to ensure the smooth completion of liquidation.The UK pays more attention to substantive fairness and tends to protect the interests of creditors;there is no position of liquidation duty holder,and the obligation of liquidation opening is borne by the general meeting of shareholders.In contrast,China has the problems of both "efficiency" and "substantive fairness".The ambiguity of the scope of the subject of the liquidation obligor,the composition of the liquidation obligor and the liquidator are not identical,and there is a time gap between the composition of the liquidation team,which delays the liquidation process,which is a problem of efficiency.The liquidation obligor is not responsible for the procedure before the liquidation is opened,and the information between the interested party and the company is not smooth and distant,so it is difficult for the interested party to actually participate in the liquidation of the company,and the relief cost is high,and the function of the liquidation obligor is very limited,which is a substantive and fair issue.In addition,although China’s liquidation obligor system and Germany,Japan,Britain have some similarities,but because the initial setting failed to consider the current situation,and supporting measures are not perfect,so in fact,the liquidation obligor system and the current policy environment,the real needs of the problem between the difficult to connect.However,the above problems should not be attributed to the setting of the subject of "liquidation obligor" itself,but mainly due to the imperfect design of the system.The setting of "liquidation obligor" has positive significance,which is in line with the national situation that shareholders in China generally "ride on the bandwagon" and act passively.However,the system is designed in such a way that an important task is given to the "liquidation obligor",but it does not secure its important position,instead,it breeds confusion among different types of subjects;it only gives the simple authority to "open",but does not provide it with other measures to assist,such as It is also important to consider that the liquidation of the company is not only a simple "opening" authority,but also not supported by other measures,such as the information flow necessary to open the liquidation and the introduction of external supervision to ensure the fairness of liquidation.In addition,considering the large number of laws and regulations related to the liquidator,especially the new Civil Code,which explicitly retains the "liquidator",it is difficult to make adjustments in a short period of time,and the abandonment of the liquidator may bring about difficulties in practice and affect the efficiency of liquidation,so the current retention of the liquidator and the adjustment of the issues therein should be the best choice.Adjustment should be the best choice.The various problems of the liquidation obligor converge ultimately point to the scope of the subject matter.Only first determine the scope of the subject can be followed by the adjustment,otherwise it is a building in the air.Based on the problem of unclear jurisprudential relationship of liquidation obligors,it is only based on the most objective deconstruction of the duties of liquidation obligors,drawing the "portrait" of liquidation obligors,and thus to determine the legitimacy of each subject as liquidation obligors.Among the shareholders,all shareholders,controlling shareholders or small and medium shareholders should not be liquidation obligors,because they do not meet the liquidation obligors need to have personal management and organizational control elements;in the case of small limited liability companies in China,the controlling shareholders may have direct operational control over the company,especially personnel control,and have the elements of liquidation obligors.However,this belongs to the substantive characteristics,need another trial penetration,if the consideration of legal certainty,our current judicial development process,it is still not appropriate.In addition,supervisors and senior management should not become liquidators,as supervisors are supervisory bodies and do not personally participate in the management of the company,and are not legally equipped to hold important books and other physical elements,while senior management is more appropriate to become a supporting role due to its "full-time" nature.The remaining directors,except for the employee directors,legally and reasonably have all the elements of being a liquidator,and the criteria for such elements match the directors’ fiduciary duties embedded in the Company Law and the Draft Company Law.However,employee directors should not serve as liquidation obligors because they have interests that are contrary to those of general directors and do not have the ability to deeply grasp the company’s operations and personnel.