A Study On The Treatment Pattern Of Company Setting-up With Flaw

At present, Chinese market economy develops quickly and becomes progressive. In 2005, the revised Corporation Law adapted the current of reform and open well, such as limiting the administrative power, advancing the action ability of Corporation Law and providing the autonomy areas for the corporation. Any revise of the law can not resolve all the problems, and Corporation Law (2005) is no exception. The treatment pattern of company setting-up with flaw which this thesis studies is one of the unresolved problems.This thesis includes three parts and researches the treatment pattern of company setting-up with flaw by the following logic structure.Preface talks that establishment of a flaw in the company is common, the dissension of flaw establishment can not be resolved and the right and benefit of the parties can not be remedied, which lead to the puzzle this thesis faces and need resolve——"administrative treatment pattern of company setting-up with flaw" whether fits the present Chinese business practice or not. In the first chapter, through combining history and logic, the author finds the origin and adaptation of administrative treatment pattern and concludes the anticipated aim which the lawmakers expect to achieve. Then, considering the current law and the applying situation of"administrative treatment pattern of company setting-up with flaw", the author indicates that this pattern can not make the aim of protecting trade come true, instead resulting in the larger difficulties in settling the flaw company.After expounding the history and actuality of administrative treatment pattern, the second chapter points out that judicial treatment pattern is appropriate to our countries at present. In this chapter, through comparing the administrative treatment pattern and the judicial treatment pattern, the author summarizes the advantages of the later and the necessity, inevitability and ages of replacing administrative treatment pattern. Through comparing treatment departments, treatment procedure and litigation system between Common Law system and Civil Law system, the author finds that most countries of two systems build the judicial treatment pattern. Therefore, the author indicates that judicial treatment pattern is the trend of international legislation and accord with the development of modern corporations.In the times of planned economy, administrative power is denounced because of intervening more areas about the corporation operation. In the aspect of company setting-up with flaw, we encourage adopting judicial treatment pattern instead of administrative treatment pattern, at the same time, judicial treatment pattern need be used prudently. Based on the above recognition and judgment, the third chapter analyzes that judicial treatment pattern should be applied prudently in the flaw company, in order to find the reasonable limit and balance the benefit among corporation, shareholder, creditor and other interested parties.