Company Judicial Dissolution Of Legal Positivism

Judicial dissolution of the company is one of the systems established by the company law in order to balance the interests of the minority shareholders and the majority shareholders. Its essence is the intervention of judicial force in corporate governance, so that the deadlock in the company which can not be resolved through other means of relief might be dissolved by judicial decision. China's 2005 "Company Law", after the introduction of this system, "Supreme People's Court on the application of<PRC Company Law> Provisions on Several Issues (b)" completed the systems in the follows aspects:the right holders to claim for Judicial Dissolution, the request and reasons, the status of litigants; mediation and so on. However, in judicial practice, there are still some problems to be solved:the clear definition of corporate deadlock; the abuse of the company deadlock terms; the lack of specific standers to identify the principle of exhaustion of other remedies; and other issues. This paper starts from a case that happened after the implementation of Second judicial interpretation of the Company Law. By drawing on the experience of common law countries and civil law countries in the relevant legislation and judicial practice, and by the application of empirical analysis, comparative analysis, normative analysis and other research methods, this paper aims to discuss some issues relating the company deadlock system which arise in practice in the trial.The introduction of the paper begins with the basic information of the case, and then it points out the relevant issues of the case. The first part analyzes the proper definition of the company deadlock, focusing on the company deadlock caused by the force majeure, and the methods to solve "shareholders veto deadlock" caused by the shareholder voting articles of association provisions on shareholder voting, as well as the form and substance of effective shareholder resolution.In the second part describes malicious litigation in the case of deadlock in the company. Firstly, it points out that malicious actions in relation to the company deadlock are likely to occur. Then it discusses the concept of malicious action, components, the burden of proof, and the concept of malicious in company deadlock. Thirdly, it gives some suggestions on legislation in tort law, procedural law, and company law. Finally, it introduces the security system and the malicious litigation lawsuit damages system in the Japanese company law and commercial law in South Korea and the Enlightenment for China.This third part discusses the validly of the contract of the shareholders signed to set up the company and the priority of articles of association issues. It briefly discusses whether the agreement on the terms of contract failure can be used as grounds for the court to dissolve the company and the restrictions.In the fourth part focuses on the principle of exhaustion of other means of relief, and points out the ambiguity and lack of maneuverability in the legislation in relation to this principle. Then it brings a discussion of whether the principle of exhaustion of other means of relief should be taken as a prerequisite before bringing proceedings to the court. Meanwhile, it gives some introduction of judicial practice in the United States, such as the system of compulsory acquisition of shares and equity valuation system of justice, in order to make this principle more specific and feasible.The last part of this paper brings conclusions to the aforementioned questions, and then it gives a summary of the understanding and reflection of the author in respect of these questions.