Extlayns The Company Deadlack The Legal Way To Search

The company deadlock is the result of the stalemate when conflicts and disagreement arise between the shareholders,directors,and neither of them want to compromise,leading shareholders,board of directors,and other agencies into a situation that they could not make a decision in accordance with legal procedures,or the decision-making can not be implemented so that the functioning of the mechanism's comes to failure,paralyses.The company has become the main form of business.And everyday there are many companies established and many companies unable to get themselves through the deadlock.The deadlock of the plight of the company not only does harm to the interests of shareholders and the company,but also to workers,creditors and stakeholders,easily leading to social instability generated.Therefore,to resolve the company deadlock has become a practical and academic issue and it is crucial to build a harmonious society in China it has great practical significance.This article starts from the point of the analysis of the concept of company deadlock, analyzes the causes of the company deadlock,revealed the nature of the company deadlock and its harm to the company,and try to fred ways to avoid deadlock.Of course,many reasons contribute to the company deadlock.And these reasons can be classified into different categories:objective and subjective ones external and internal ones,institution and reality reasons,deep and superficial ones,and so on.This article analyze in the perspective of institution and reality causes.Among institution causes,this article analyze the closeness of close company,t limitations of the three principles of capital,the plight of the principle of majority capital vote,the negative effect of the protection of the interests of minority shareholders.In the reality causes,this article analyzes the diversity of the interests of the members of the company,the different understanding of the concept,and the lack of the protection of function of the articles of association.In order to understand the company deadlock and find the most effective and most reasonable ways to solve the problem of company deadlock,the article also sort six types of companies deadlock.That is,deadlock of public and private company according to the company's nature;the deadlock of the Board of directors and the deadlock among shareholders according to the body where deadlock appears;deadlock of vote,deadlock of operation and deadlock of control according to the forms of deadlock,equal Deadlock and veto deadlock according to whether the right of vote is equal;deadlock of decision,deadlock of performing and deadlock of distribution according to the different stages when deadlock appears;Deadlock that is caused by disputes in the scope of corporation law and deadlock caused by disputes not in the scope of corporation law according to the nature of the disputes.According to the classification of company deadlock,its harm to shareholders,workers of the company and the the society would be apparent.For the company to break the deadlock,this article has designed two ways.The first is judicial dissolution,and the second is non-judicial dissolution.And non-judicial dissolution begins with the prevention of company deadlock.As to judicial dissolution,this article begins with the seeking of jurisprudence for company dissolution,focusing on the contractual relationship theory and the failing anticipated interest theory.The contractual relations theory regards that the company is a contract that two or more people entered into.Basing on this contract,they give their property or labor to the company and thus enjoy the profit generated.However,as the company contract is a long-term,closed,complicated and constantly changing one,it becomes a potential problem for a company.This theory thinks that company deadlock is equivalent to a contract dispute,and it is natural for courts to solve this problem.Law of People's Republic of China Chinese-foreign equity joint-venture article 20 is the practice for contractual relationship theory.The failing anticipated interest theory is the theatrical basis for the solution of company deadlock.This theory thinks shareholders have anticipated right to stability of the personality and operation of the company when they join the company.They can be repaid by profit and position,and they have rights to dismiss the company when the anticipated right cannot be realized.Contractual relationship theory solves company deadlock on the respect of legal relationship,and the failing anticipated interest on the respect of economic profits.Regarding the practice of this theory,this article introduces the examples in continental law and Anglo-Saxon law, which of course is to discuss how to develop the legislative and judicial practice.Legislation is not only a path to solve the problem in the future,but also a powerful response to the conflict of reality.In 2005,before the Company Law Amendment,the law did not intervene in the company deadlock,and the Supreme People's Court even not takes the case by way of judicial interpretation of the provisions.But the local people's courts at all levels in the face of these cases prosecuted carry out an active exploration.In this paper, a rough sort is dropped to these kinds of cases.As a matter of fact,it is the judicial practice of the District Court has accumulated useful experience for the amending the Company Law.In the course of writing this article,the Supreme People's Court issued a judicial interpretation of the company law(2).Based on my understanding of the relevant provisions of law and judicial interpretation of lack of further exploration,a judicial dissolution of the company's appeal of the application of the principle-the principle of exhaustion of other means of relief and the principle of the legitimacy of the purpose of prosecution,that is,its purpose is to use the judicial dissolution properly to solve the problem of company deadlock,and to discuss from the plaintiffs eligibility limit,the jurisdiction of the case and the setting up pre-mediation procedures.Different views about the judicial status of the company and shareholders are put forward compare with the judicial interpretation.That is,company is not a qualified party in the dissolution of company,because the company deadlock is just as "a computer screen of death".That means it is "humanitarian",if we force "dead person" to speak and do suit action;other shareholders are the plaintiff or the defendant and can not become the third person, because in the face of the reality of their own interests,we can not ask them as a "third party to look on," As a matter of fact,I am afraid they are not willing to do so.For the non-judicial path to solve the company deadlock,this article mainly discuss the precautions of agreements of shareholders and articles of association.Shareholders can also solve the problem through mediation and arbitration.Setting a few possible ways to solve the problem of company deadlock is to find a more convenient,and low cost mechanism and adhere to the traditional Chinese philosophy:harmony.The author is only a toddler winding paths to explore the company deadlock.These arguments and recommendations may be superficial and the author welcomes the criticism of experts.