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Judicial Dissolution of the theoretical basis

Author: ZhaoHuiYing GuoYuKun From: www.yourpaper.net Posted: 2010-07-11 23:39:38 Read:
Abstract: October 27, 2005 Tenth National People's Congress Standing Committee of the 18th session for consideration and adoption of the "People's Republic of China Solid Companies Act", a major breakthrough in this law that expressly provides for judicial dissolution of company. Sets Division judicial dissolution of a shareholder rights relief system. Reflects the judicial powers to intervene in the dissolution of the sets of the Secretary. This article discusses from multiple angles jurisprudence, the Civil Code and the Companies Act, the Company Judicial Dissolution of established theoretical basis.
Keywords: Company judicial dissolution; theoretical basis; law basic value

The dissolution of the company means the company has been set up due to occurrence of the purposes stated in the articles of association, the subject matter of the shareholders' meeting or law other than bankruptcy to stop operating activities, and the liquidation of the state and steps. Serious difficulties in which the company's management continues to exist and the interests of the shareholders will suffer significant losses, can not be solved by other means, the court based on the request of shareholders force the dissolution of the company called The Judicial Dissolution.
Any design of a legal system must have a solid theoretical foundation to pave the way, and the dissolution of the Company judicial system is no exception. Theoretical basis the following from jurisprudence, the Civil Code and the Companies Act and other point of view on Judicial Dissolution of system established.

Judicial Dissolution of jurisprudence foundation - the fundamental values ??of the law

(A) the concept of justice
"Justice only by good laws to achieve," the law is the goodness and justice of art. These old law maxim that the law is or should be a means of achieving justice, the law is the most important value is to achieve justice. The cells of the modern market economy, social enterprise, and the company is the most basic form of organization, the Companies Act as regulating its establishment and organization of legal norms, the law should embody the concept of justice and the realization of just value by the specific system design .
Justice is a specific category of history, law contributed to the realization of justice in different societies with different content, for people to justice is a relative concept. However, justice has a consistent, common content, that is an insurmountable bottom line - the idea of ??justice, this concept does not allow for the greater interests of some people, deprived of the rights of the minority to the detriment of the interests of the minority. Capital majority vote is the basic principle of the Companies Act, the largest shareholder invested more than small shareholders to assume more responsibility and risk, and so ought to obtain control of the company, to participate in the company's business decision-making. This is in line with the principles of the rights and obligations consistent. However, the legal concept of justice does not allow large shareholders unconscionable abuse of Majority Rule, indifference, to restrict or deprive the rights of minority shareholders. When The largest shareholder holdings advantage, from our own interests, use of company property, and the company becomes an empty shell, the company will become the largest shareholder of a tool for personal gain. Thus, out of the pursuit of the concept of justice, the Companies Act to small and medium-sized shareholders judicial dissolution claims.
(B) the concept of security
Security including personal security and social security, social subjects to be an important condition for the enjoyment of other values ??(such as the value of life, property, freedom, equality), which itself is also an important value. Hobbes (Hobbes) or even the value of the security mentioned in the supremacy of height, he thinks: "human security is the supreme law, and freedom and equality in a subordinate position. He believes that if the person's property, life, liberty, shrouded in the trap of abuse, disaster, any good things to mankind will lose its value, human self-creation date of the laws, seeking legal value and function .
The law itself is the stability of the social order and the rights of a suppressor for out-of-control powers, has an important position and role of the security law. Security is also developed one of the important concepts of the Companies Act, the legislative purpose of the Companies Act to maintain the safety of the property of the company, shareholders, creditors, and other related entities. The profit is an important feature of the company's fundamental hallmark of the company from the authorities a legal person, of legal institutions and social organizations of legal persons, the shareholders' investment in the establishment of the company's purpose is to earn money through this form of economic organization of the company. In the special case of the company's management of serious difficulties, not only the purpose of shareholder profit can not be realized, the shareholder's investment may be lost, the property of the shareholders will no longer have the security. Therefore, when the company's management of serious difficulties, a threat to the legitimate rights and interests of the shareholders, the shareholders, especially minority shareholders have judicial dissolution request the right to the dissolution of the company, to protect their own rights and interests, and to ensure the safety of their property, which is in line with the legal value of the security philosophy.

Judicial Dissolution of civil law theory foundation

(A) The agency theory
The agent is an agent in accordance with the right agent, to bear the legal consequences of the act for the the principal processing services by the client system. The agency system is of great significance, First, it expanded the scope of activities of the civil subject. Principal due to lack of time, energy, expertise, many things difficult hands-on, but it is essential to achieve their own interests, which requires trusting others to handle. The proxy Therefore, the client's ability to be extended. The legal personality of the individual as Pollock pointed out: "The agent system can be extended in space." Agent system can also supplement the lack of capacity of some civil subject. Civil capacity and limit the capacity for civil conduct can not, or can not be completely through their own behavior, to own their own set of rights, fulfill their obligations, are complemented agent capacity to make such civil subject. The difficulty of the agency problem is to motivate the agent acting for the interests of the principal, rather than act in order to seek the agent's own interests. Therefore, the agent must be in accordance with the principle of honesty and credibility in agent behavior, trying to do a diligent and careful obligations to fully safeguard the principal's interests.
Commercial companies will produce three agents, one class agent problem involving a conflict of interest between the controlling shareholders and minority shareholders of the company's non-controlling shareholders. In which the non-controlling shareholders is an agent, and controlling shareholder is the agent. The difficulty of such problems is to ensure that the exploitation of the former from the latter, the law played a big role in reducing agency costs. The obvious example is to improve the agent information disclosure, convenient to be an agent of dishonesty or negligence attorney filed a civil action rules and procedures. Capital Majority largest shareholder abuse decision principle and holdings advantage, malicious oppression of minority shareholders, against the interests of minority shareholders behavior is contrary to the principle of good faith, belonging to the agency cost problem. The establishment of the system of judicial dissolution is reluctant to make the largest shareholder, urged large shareholders to exercise their rights in accordance with the principle of good faith, or the interests of minority shareholders against may bring an action for the dissolution of the company. In this sense, the Judicial Dissolution of the system is based on the agency problem between large shareholders and minority shareholders generated, its function is to promote the largest shareholder of minority shareholders to fulfill the obligation of good faith, so as to reduce agency costs. When the situation can not clean up the abuse of power of the largest shareholder, the legitimate rights and interests of the minority shareholders will be seriously jeopardized, minority shareholders can be lifted by the Judicial Dissolution of the agency relationship, to get rid of the largest shareholder bullying situation.
(B) the right to relief theory
Proverbs says: "the right bound infringement, violations of bound relief." If the rights have been violated can not be fully and timely relief, it will be an empty promise. "Article 5 of the General Principles of the Civil Law provides:" lawful civil rights and interests of citizens, legal persons protected by law, any organization or individual shall not be infringed. "
Equity is a mutual link between shareholders and the company. China's new Company Law "provisions of Article 4: Company's shareholders are legally entitled to a return on assets, and participate in major policy decisions and the right to choose managers." Equity can be defined based on the identity and status of its shareholders for shareholders entitled to obtain economic benefits from the company and participate in The rights of the company management. About the nature of equity claims said property rights (ownership), members the right to say a different point of view and said shareholder status, one of the most typical is the creditors said and property rights (ownership), perspective. However, civil rights and the opening up and development, along with the development of the society will generate many new civil rights, equity is one. Equity from the corporate system, and the company generated modern, limited liability companies and joint stock massive rise also more than a hundred years time. Option generation than property rights, claims much later, but the content is more than property rights and claims a rich and complex. With property rights or debt to equity qualitative, equity characterized as a new, independent property rights.
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