| Company liquidation and company dissolution are two company legal systems that are independent of each other in procedure and closely related to each other.The reason for the dissolution of the company comes first,and the liquidation of the company comes later,thereby eliminating the corporate personality of the company and realizing the goal of the company’s main body completely withdrawing from the market.In practice,many companies fail to carry out liquidation procedures in time to pay off company debts after the reason for dissolution occurs,forming a large number of "zombie companies",and even some companies are illegally cancelled,resulting in the emergence of adverse consequences such as the loss of company assets,which in turn makes The legitimate rights and interests of stakeholders such as creditors cannot be realized,which seriously undermines the economic order of the market.In order to meet the urgent needs in practice,my country has gradually established a liquidation obligor system parallel to the liquidation group system,as the initiator of the company liquidation process.First of all,as far as the liquidation obligor system is concerned,it is different from the liquidator system and the legal liquidator system,and it is necessary to strictly distinguish the differences between the three.Secondly,although the liquidation obligor system has played an important role in regulating the company’s liquidation behavior,the lack of sufficient theoretical support for the construction of the system has led to many confusions in the liquidation obligor system,such as the unclear definition of the liquidation obligor and the unclear nature of civil liability.Wait.In particular,the "Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Company Law of the People’s Republic of China（2）" and the "Civil Code of the People’s Republic of China" as the current law that stipulates this system,due to differences in the formulation of the provisions,the applicable standards are not unified,which has caused extensive discussions in the theoretical and practical circles.Through the study and analysis of the legal provisions of the liquidation obligor system and judicial cases,this paper summarizes the application dilemma of the liquidation obligor system in our country,and lays a foundation for improving the liquidation obligor system.In order to have a clearer understanding of the liquidation obligor system and realize the original intention of the establishment of the system,this paper explores the liquidation obligor system from the perspective of liquidation obligations.By exploring,it is believed that the liquidation obligation is the manifestation of the fiduciary obligation in the liquidation stage of the company,and based on this,it is determined that the subject of the liquidation obligation is the subject with the fiduciary obligation and enjoys the right to control the company;and because the responsibility comes from the violation of the obligation,when the subject of the liquidation obligation When the liquidation obligation is not fulfilled,the legal obligation is transformed into legal liability,and the nature of the liability is considered to be tort liability through analysis.At the same time,it will inspect the foreign system and draw lessons from its experience.Finally,on the basis of clarifying the subject of fiduciary duty,and comprehensively considering the practical operability,the qualified subjects to determine the liquidation obligor are the controlling shareholders and directors,and on the basis of recognizing civil liability as tort liability,the constitutive elements and limitation of action are analyzed,and suggestions are put forward to improve the system of the liquidation obligor in China. |
