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The Legal Application for the Judicial Dismiss of Company

Author: LiuHaiBing
Tutor: HouDongDe
School: Southwest University of Political Science
Course: Legal
Keywords: company deadlock judicial dismiss legal application pre-procedure
CLC: D922.291.91
Type: Master's thesis
Year: 2011
Downloads: 64
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Abstract


The < the Company Law of the People’s Republic of China (revised)>, called new Company Law had been deliberated and passed by the Eighteen Meeting of the Standing Committee of the Tenth NPC. The article 183 of the new Company Law provides that, the people’s court could decides to dissolve a company, which management is in difficult, shareholders will continue to exist, subject to significant losses, can not be solved by other means, all shareholders holding more than 10% of shareholder voting rights. Since then, there have been many judicial practice related to the case. However, due to which the provisions are too broad, vague, whether it is academics, or practitioners, on the understanding of which are very controversial, especially for the "can not be solved by other means", "serious management difficulties" defined. This paper is composed of four parties, following major elements:Part one is the reasons, the brief introduction and the trial, which is the prelude for the following analysis.Part two is the pondering about the evaluation of the trial that is the focus of this paper. In this part, there are two disputes of the case in the theoretical field: one is whether plaintiff is suit for the condition that“solve without other ways”that is made the judicial dismiss as the“determinate weapon”; two is whether the defender is belong to the situation that the“serious running that would harm the great benefits of the fellows”as the rules. In the question one, the author gives the demonstration about the importance, the detail approaches and the results of the absolute condition with the different cases. In the question two, the author made the distinguish between the“deadlock”and the“serious running”and considered that the“deadlock”is just the one kind of the running serious then put forward the opinions over the understanding of the serious problems in the management with the typical cases, which could be definite as the serous running even making the merits and secondly the views of the great damages of the fellows if it go on running.Part three is the suggestions over the judicial practices and the dismiss problems as expert part of the paper. The four policies by the author are: one in legislation level, the“enforced separation system”should be established in the judicial rescues; two in the judicial level, the tough burden of proofs should adopt in the pre-judicial rescues and cost the other ways; three is the strengthen the plans and the precaution of the company rules.Finally, the concludes would be generated the author’s standpoint: the Article 183 of the new Company Law enforce the dismiss procedure of the court by terminated the life of a company, that is helpful to end the dangerous capitals, reduce the investment risks and avoid the fellow’s puzzles which is similar to the effect of the“euthanasia”to the company. However, as the magnified effect, the strict conditions should be ruled in the dismiss procedure, which is the serious running that harm the great benefits of the fellows without any resolutions expect for the judicial dismiss by the courts.

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