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On the company's system of special liquidation

Author: JiuSongJiao
Tutor: WangYanHua
School: Zhengzhou University
Course: Civil and Commercial Law
Keywords: Ordinary liquidation Compulsory liquidation Special liquidation Legal liability
CLC: D922.291.91
Type: Master's thesis
Year: 2009
Downloads: 37
Quote: 0
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Abstract


Market economy is the legal economy. As the main body of market economy, the legal entity must not only obey Admission Rules to take part in market competition; but also must have complete regulation to withdraw from the market. However, for years, theorists, practice and judicial circles have different understandings about legal dissolution and suspend relationship, which causes that after dissolution, many legal entities do not liquidate in time, even intentionally evade debt through dissolution. This seriously does harm to the interests of creditors. And the company liquidation procedures provided in the existing Company Law is only a general liquidation procedure in ideal state. But in practice, definitely there are lots of problems that the general liquidation can not liquidate normally. The special liquidation system is the important component of the company clearing system in every country; yet it is not perfect of the Company Law in China. The Clearing Methods of Foreign-invested Enterprises in our country has made provisions for special liquidation. But in one part, this method has the limited application; in the other part, it is stipulated in the special administrative liquidation, with a specific meaning different from that of the company liquidation system in particular.It was against this background, Supreme Court issued provision II that is applicable for some issues about Company Law of People’s Republic of China (hereafter referred as Judicial Interpretation of Company Law II). The author considers that in this interpretation, some provisions essentially refers to the company special liquidation system, which makes the special liquidation system has legality. However, because of that neither the Company Law nor the Judicial Interpretation of Company Law II makes clear nor specific regulations for special liquidation system, the academics have different understandings about special liquidation system. Also they make no regulation about the specific operational procedure of special liquidation system and relevant legal problems; it directly causes the special liquidation system lack of systematization and operability. Therefore, it is of great theoretical and practical significance for the author to deal with the concept and operational procedure of special liquidation system, the conversion issues of special liquidation and bankruptcy liquidation procedures, and some other issues in this paper.Except for introduction and conclusion, this paper consists of five parts.The first part is mainly about the fundamental theoretical question of company special liquidation. First, this paper introduces several representative definitions of company special liquidation made by academics in current and makes brief analysis about them. Secondly, it makes comparative analysis about the difference and relationship between the concepts of special liquidation and ordinary liquidation, compulsory liquidation, bankruptcy liquidation. It aims at revealing about the peripheral system related to company special liquidation and the cognitive status of company liquidation in current theoretical circles.The second part mainly researches the current legislation of the special liquidation system and the problem in our country. In this part, this paper comprehensively hackles and analyses the current legislation of the special liquidation system in our country. And on this basis, it reviews the defect of the current legislation of company special liquidation system.The third part is about the comparing research of company special liquidation. It focuses on the legislative provisions about special clearing system in China’s Taiwan and Japan. Thus, it makes contrast with the current statement of the special clearing system in our country. Then,analyzes the foreign legislation of the company special clearing system and reference significance for our country.The fourth part is mainly about key content of company special liquidation. It consists of two aspects. One is the applicable conditions of company special liquidation. It is divided into formal and substantial elements. Substantial elements include ordinary liquidation meets significant obstacles, companies are suspected of excess of liabilities over assets and some other reasons. What is important is that in the other reasons, the author gives his own opinions based on the legislation of our country. Formal elements include: the related obliged apply for special liquidation to the people’s court; the people’s court that accepts the application has the jurisdiction. The other one is the right (power) setting of company special liquidation.One is public power: the jurisdiction setting of the court in special liquidation. The other one is private right: the right setting of the creditors’ meeting in special liquidation.The fifth part researches suggestions to consummate the special liquidation system in our country. Suggests to consummate mainly throug three aspects. One part is comes up with six basic principles that the legislation of the special liquidation in our country should insist and masters the construction thinking of special liquidation system on macro scope. The other part is the connection of liquidation procedures and bankruptcy liquidation procedures. It describes the connection of them in the existing legislation and analyses the existing obstacles and countermeasures of their connection according to the practice. The third part is introduces the matching provisions of the special liquidation system. This paper introduces from two aspects.One aspect is suggests set up system of dismiss company. The other aspect is the legal responsibility for violation of the special liquidating obligations. It analyses the legal responsibilities of the liquidation obligor and liquidation owner, mainly about the civil liability that they should undertake.

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