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Obligor liquidation of the legal system

Author: WangXiaoYu
Tutor: XuXiaoSong
School: China University of Political Science
Course: Economic Law
Keywords: LIQUIDATION OBLIGOR CORPORATE CONTROL FIDUCIARY DUTY DUTY OF CARE
CLC: D922.291.91
Type: Master's thesis
Year: 2010
Downloads: 169
Quote: 4
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Abstract


Currently ,the systym of China’s liquidation procedures is divided into two parts: Bankruptcy and Non-bankruptcy liquidation . For the bankruptcy liquidation proceedings, both law-making and theoretical studies are more fully; However, for non-bankruptcy liquidation proceedings, whether legislative aspect or theoretical studies are somewhat weak. In this area there are many issues worthy of further exploration, one of which is the legal system of corporate liquidation obligor. Although the Supreme People’s Court in 2008 issued on the application of The People’s Republic of China Company Law provisions of a number of issues (b) regulated this system in details, still the legal basis for such issues, the scope of human subjectivity,and the nature of civil liability remain to be further clarified.In this paper, based on the current results of the academic, judicial practice, through the comprehensive utilization of comparative analysis, historical analysis, logical analysis and other methods, the legal system of corporate liquidation obligor is illustrated as much as possible . Be summarized as followed: Directors and controlling shareholders of the company based on its control of the company (mainly shareholders) have a fiduciary duty to the company, while they have the general duty of care to the creditor. Directors and controlling shareholders of the company based on their fiduciary duty become the company liquidation obligors.If corporate liquidation obligors do not liquidate according to law resulting in the loss of the companies, shareholders and creditors, they are liable for tort liability for damages based on breach of its fiduciary duty to the company . To creditors,they have the joint and several liabilities on the company’s debts based on breach of duty of care and contributory infringement. To creditors, the scope of damages is the actual loss ,however when they cannot prove the company’s assets when it is dissoluted,the scope is the total debt.To the company’s non-controlling shareholders, the scope of damages is the actual loss ,however when they ?cannot prove the company’s assets when it is dissoluted,the scope is the shareholder’s contribution.Systematic conclusion drawn above is based on the following three-part discussion.The first chapter, on the basic theory of corporate liquidation obligor, is described in details including:the concept and the origin of corporate liquidation obligor, the difference between corporate liquidation obligor and the liquidator,the causes and theoretical explanation difficulties of corporate liquidation obligor.The second chapter,about the scope of the subject of corporate liquidation obligor, includes the following two problems:firstly, the liquidation obligor of a limited liability company shall be the controlling shareholders rather than all the shareholders;secondly,it is based on the duty of care rather than the fiduciary duty that the directors become the liquidation obligors to creditors.The third chapter is about the obligations and civil liability of corporate liquidation obligor.It includes four specific obligations. The explanation on the civil liability contains the legal nature, components, areas of responsibility, the subject of claim and the accountability approach.

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CLC: > Political, legal > Legal > Chinese law > Economic Law > Corporate law, company law
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