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Talk about the dissolution of the existing provisions of the Company judicial deficiencies

Author: GuoZuo¡¡SunZhiYong¡¡ZhangAiHua From: www.yourpaper.net Posted: 2009-10-22 01:09:16 Read:
Abstract: Section 183 of the existing Companies Act to formalize a system of judicial dissolution of our company. Subsequent 1447th meeting of the Judicial Committee of the Supreme People's Court in May 2008 by the "Law of the People's Republic of China on the applicable number of issues the provisions of (b)" (hereinafter referred to as the Company Law provisions b) further refine a hearing on the dissolution of the company the requirements of the case, mainly including the Judicial Dissolution of the subject matter and the procedures to bring the dissolution of the v.. Not yet introduced on the applicable Law of the People's Republic of China> Provisions on Several Issues (c) (draft) "(hereinafter referred to as the Companies Act provisions of the the three draft) has been formed, the dissolution of the company in the regulations again The specific application of law provisions. Although legislation initially established Judicial Dissolution of the system, but how to apply judicial practice in continuous exploration and refinement process. Judicial Dissolution system of paper will combine foreign legislative experience of some of the specific issues were discussed.
Keywords: judicial dissolution of the operation and management of the subject of litigation

Judicial reasons for dissolution judgment dilemma

Company Law since 2006, established a system of judicial dissolution, to a certain extent to solve the problem of our long-standing company judicial dissolution is no legal basis. But shortly after this system is established, in all over the country court judge according to the subjective understanding of different cases of the same type of judgment distinct. The two most typical cases: the Shanghai Second Intermediate People's Court accepted the of Haibo star Gene chip request dissolution of the limited liability company on Haibo gene chip technology Company, Limited, the Higher People's Court of Zhejiang Province Zhejiang Xishan Chen filed for dissolution Pump Co., Ltd., Shanghai Xishan Pump Co., Ltd. case. Although the causes for the two cases there is a certain difference between the former shareholders, which occurred between directors and shareholders, but are essentially business management difficulties, has greater similarity final judgment was very different, This reflects the provisions of Law in China on the subject matter of judicial dissolution certain defects.
China's "Company Law" 183 reasons for dissolution summarized serious difficulties for the operation and management of the abstract nature of this argument is too strong, that scholars in a very long time, there is much controversy about the operation and management difficulties understanding the specific said that there are two different points of view. One view is that the operation and management difficulties, both operating difficulties, including management difficulties. Another view is that the operation and management difficulties only management difficulties, the subject of the company of the common law countries impasse advocate of judicial dissolution of the Company Law. The so-called corporate deadlock, subsisting run between shareholders, directors the fierce contradiction or dispute, and unwilling to compromise with each other in a stalemate situation, resulting in power and decision-making authority of the shareholders, board of directors, etc. into a right to confrontation and not in accordance with the statutory procedures for decision-making, so that the company is not the normal operation, the fact that the state and even paralysis. Therefore, the essence of corporate deadlock in trouble is the company authorities.
In May 2008, the Supreme Court adopted the provisions of the Companies Law, the provisions specifically enumerated in several cases may be brought in the judicial dissolution of the v.. As can be seen, our reasons for dissolution of the judicial defined for the company authorities stalled for not difficult financial state regulations and explicitly mentioned, of loss of property is insufficient to repay the entire debt filed dissolution Company Litigation, the people's court shall not be accepted. Therefore, I believe that our judicial dissolution of the reasons is the Anglo-American legal systems of corporate deadlock. Such provisions some extent limit the Judicial Dissolution of proliferation of the phenomenon, but compared with most countries of the provisions, the scope of certain narrow.
In fact, both the common law countries or civil law countries, the subject of judicial dissolution provisions are more extensive, both the companies mentioned deadlock, oppression and company assets also include serious problems. Companies oppression is controlling shareholders to take advantage of their right to vote advantage to impose unfair treatment of the case of minority shareholders. In this case, the company is able to operate as usual, does not form a company impasse, but subject to greater damage to the interests of minority shareholders. The problems of the assets of the company generally refers to serious losses in the financial affairs of the company. In both cases, the company continues to exist and be related to the interests of people really adversely affect the mandatory dissolution but also conducive to safeguarding the interests of minority shareholders and creditors, but our Companies Act II corresponding provisions, many scholars believe that this unreasonable, should be prescribed, especially for corporate oppression, in favor of more intense as the voice of the reasons for dissolution.
I believe that our current legislation does not the company oppression into the force causes for the dissolution of the Company is reasonable. There are two reasons: First, for society, to force the dissolution of not only relates to the interests of the company and the shareholders, but also related to the company's stakeholders and the interests of society, the state's tax cuts, unemployment population increase has brought a heavy burden to society. Therefore should take a cautious approach to the detriment of the interests of more people, not to protect the interests of minority shareholders. Second, of the Companies Act for small shareholders to exit the company to provide a legal guarantee company oppression of minority shareholders by the appraisal rights of dissenting shareholders to exit the company, rather than dissolution of the company. As for the problems of the assets of the company, I believe that should be excluded from the dissolution of the subject matter. Assets problems mainly for Company financial crisis, this financial problem entirely by changes in business strategy, debt restructuring or to obtain new financing to be resolved, there is no need to dissolve the company. In summary, our current judicial enforcement reasons for dissolution is reasonable.

The judicial dissolution Front program

V. (a) the dissolution of the "pre-program"
Provisions of the Companies Act, it can not be solved by other means before they can request the court to dissolve the company point of view from the provisions of the Companies Act can not solve by other means as the prosecution of the pre-conditions of admissibility. How to understand the "other means can not solve it, the provisions of the Act and not clear, mainly refers to proceedings under the premise of the means to take self-help, administration had no effect. Therefore, the court in deciding whether to accept the dissolution of the complaint to determine whether the shareholders had tried to take the mandatory relief other than dissolution, only exhaustive "other ways" to the admissibility of the complaint.
(B) to force the dissolution of the "pre-program"
The judge accepting requests the dissolution of the Company v. are still faced with two choices: direct judgment of dissolution of the company; go through a pre-programmed, can not solve the problems faced, and then judgment dissolution of the company. Of this is how the provisions of this article to the provisions of the Companies Law as a starting point for analysis.
Companies Act II provisions: the people's court to dissolve the company litigation cases, should focus on mediation. The parties agreed to the acquisition of shares by the company or its shareholders, or the way of capital reduction, the company continues to exist, and does not violate the mandatory provisions of laws and administrative regulations, the people's court should be supported. The parties can not negotiate a result the company continues to exist, the people's court shall render a judgment. So seen from the provisions of the Companies Act provisions 2 only encourage the judge before hearing the dissolution of the company's complaint mediation, and there is no mandatory requirement. The Companies Law provides the three draft for this problem have a relatively clear, the people's court to dissolve the company litigation, plaintiff shareholders and other shareholders of the company shall organize for mediation. As can be seen from the provisions of the mediation will be necessary to adopt the provisions of three pre-procedure as an action for the dissolution of the company.
If the provisions of the three successfully passed and implemented mandatory judicial dissolution of the two pre-conditions: filed judicial dissolution of the complaint, before accepting the court can not be resolved through "other means" To confirm that. V. judicial dissolution of the trial, can not be directly judgment of dissolution to the current mediation.
(C) the acquisition of shares by mediation
Variety of mediation, of the Companies Act Three draft mentioned equity acquisition, specific provisions for the other shareholders of the company are willing to acquire the shares of the shareholders of the plaintiff and the transferee Price consensus should be closed by mediation. This is the most important in the current court mediation mediation, but mediation is to establish the price can reach a consensus, then in most cases, the other shareholders of the company are willing to buy the plaintiff shareholders shares can not negotiate on the transferee Price consistent, then how to deal with it? Cause scholars dispute this issue in the draft of the provisions of the Companies Law draft, there are basically two views: in this case, because the two sides can not reach a consensus on all of the conditions of the share acquisition, it is not the completion of the acquisition; otherwise view that the People's Court verdict other shareholders of the company allows to assess based on the last balance sheet to determine the price of the acquisition of the shares of the plaintiff shareholders. I tend to the second view, that in this case should be to promote the completion of the acquisition of equity to the maximum extent. Equity acquisition method based on mediation in our current legislation, and are built on the basis of other shareholders are willing to buy options on. If you did not reach the unanimous will of the option, you can not be implemented, then only ask the court to dissolve the company? I believe that China can learn from common law countries, the mandatory share exchange system, and then set a threshold before the dissolution of the company. (D) timely introduction of mandatory share exchange
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