Research On Company Liquidation Obligor System

After the dissolution of the company,its legal personality shall terminate after liquidation and cancellation in accordance with the law.The initiation of liquidation procedure is the first door for a company to eliminate the legal personality and withdraw from the market in an orderly manner.The system of liquidation obligator is the golden key to the initiation of liquidation procedure,which plays an important role in effectively connecting the two procedures of dissolution and liquidation,ensuring the balance of interests among the parties,and maintaining good market order and security.It is found that there are still some problems and dilemmas which need to be solved by systematically combing the legal norms and judicial practice of this system.First,the scope of the subject of liquidation obligor is unreasonable.The Civil Code is inconsistent with the Judicial Interpretation of Company Law(II),causing disputes on how to apply it.It is not reasonable to distinguish the types of companies,define the scope of different subjects and make all shareholders act as liquidation obligator,and the practical effect is not good.Second,the connotation of liquidation obligation is fuzzy.The specific content and time limit of liquidation obligation are not clearly defined in legal norms,and it is difficult to accurately distinguish in judicial practice,which is easy to confuse the content of liquidation obligation with other subjects.Third,the rules of determining civil liability for breach of obligation are chaotic.It shows that the nature of responsibility and its constituent elements are unclear.It can provide useful inspiration for the perfection of our system by attacking jade and transversally investigating the legislative norms of foreign countries in the area of subject definition and responsibility determination.In view of the problems existing in the system,combined with the experience outside the region,further seek the system improvement path.First,reasonably define the subject who should be the liquidation obligor.Applying the same subject range of liquidating obligator to limited company and joint-stock company is more in line with the original intention of the system to start liquidating procedure quickly and the objective reality that the two types of companies are increasingly homogenized.Defining directors and controlling shareholders as liquidation obligators not only satisfies the theoretical legitimacy of control rights and fiduciary obligations,but also has the feasibility and efficiency in practical operation.Second,clarify the specific connotation of liquidation obligations.Based on the specific identity of the liquidation obligor,it shall be clarified that it is mainly responsible for the timely establishment of the liquidation group and the initiation of the liquidation procedure within the legal period after the dissolution of the company.Only when the liquidation procedure is not started after the legal time limit,the Party shall be obliged to properly keep and timely hand over the company’s property,accounts and other important materials.Third,clarify the rules for determining liquidation liability.Liquidation liability is a special form of liquidation liability,both of which are tort liability in nature.When determining liability,it should strictly examine the elements such as tort act,subjective fault,damage fact and causality.