Viewpoint... Under the background of the new Company Law, lawyers handle the practice of company cancellation.

If a company is dissolved for various reasons or is declared bankrupt by the people's court, it shall apply for cancellation of the company registration after liquidation.

(1) Voluntary dissolution.

The first paragraph of Article 229 of the new "Company Law" stipulates that "the business period stipulated in the articles of association expires or other reasons for dissolution appear", "the shareholders' meeting resolutes to dissolve", "the company is dissolved due to merger or division", etc. It is a voluntary dissolution.

2. Forced dissolution.

The first paragraph of Article 229 of the new "Company Law" stipulates that "the business license is revoked, the closure or revocation is ordered", "the people's court decides to dissolve the company based on the application of shareholders holding more than 10% of the voting rights", etc. Compulsory dissolution.

Article 242 of the new "Company Law" stipulates that if a company fails to reorganize or reconcile after the cause of bankruptcy appears, and is declared bankrupt by the people's court, it shall apply for cancellation of company registration after the implementation of bankruptcy liquidation in accordance with the law on bankruptcy of the enterprise.

Articles 232 and 239 of the new Company Law stipulate that if a company is dissolved for legal reasons, a liquidation group shall be established within 15 days to carry out liquidation. After the liquidation is completed, the liquidation group shall prepare a liquidation report, submit it to the shareholders' meeting or the people's court for confirmation, and submit it to the company registration authority to apply for cancellation of company registration.

A company with one of the following circumstances shall cancel its registration through ordinary procedures: laws, administrative regulations or decisions of the State Council require approval before cancellation of registration; its business license has been revoked, ordered to close down or revoked; it is included in the list of abnormal business operations or the list of serious violations and dishonesty in market supervision and management; there are shares (property shares) frozen, pledged or chattel mortgages, or investments in other enterprises; still holding equity, stocks and other equity investments, debt investments or land use rights, real estate and other assets; failing to file income tax liquidation declarations in accordance with the law or failing to pay income tax on liquidation income; being under investigation or administrative compulsion, and in litigation Or arbitration proceedings; administrative penalties such as fines have not yet been implemented; there are debts such as outstanding liquidation expenses, employee wages, social insurance expenses, statutory compensation, taxes payable (late fees, fines), etc.

Article 240 of the new "Company Law" stipulates that if a company has not incurred debts during its existence, or has paid off all debts, the company registration may be canceled through a summary procedure upon the commitment of all shareholders.

Summary write-offs are not subject to liquidation proceedings, but shareholders are required to make a written commitment to assume legal responsibility. The summary write-off applies only to companies that have not incurred debts or have paid off their debts (except listed companies limited by shares).

Article 341 of the new "Company Law" stipulates that if a company has its business license revoked, ordered to close down or revoked, and has not applied to the company registration authority for cancellation of company registration for three years, the company registration authority may force the cancellation of company registration after performing the announcement procedure.

The preparatory work before the general write-off is mainly to carry out liquidation in accordance with the law, that is, to clean up all kinds of assets and debts of the company, and to distribute the remaining property, with the aim of protecting the interests of creditors, shareholders, employees and the public interest.

1. Establish a liquidation group.

(1) The liquidation obligor establishes a liquidation group on its own to carry out liquidation.

The liquidation obligor stipulated in Article 232 of the new Company Law is the director of the company, and the director has the legal liquidation obligation. If the violation of this obligation harms the interests of the company or creditors, he shall be liable for compensation. The directors shall establish a liquidation group within 15 days from the date of the occurrence of the cause of dissolution of the company, and the members of the liquidation group shall be the directors or the persons specified in the articles of association or the resolution of the shareholders' meeting.

(2) The court appoints the establishment of a liquidation group for compulsory liquidation.

Article 233 of the new "Company Law" stipulates that if the liquidation obligor fails to establish a liquidation group in accordance with the law or does not liquidate, delay liquidation, or illegally liquidate after the establishment of a liquidation group, the interested party may apply to the people's court to designate relevant personnel to establish a liquidation group. Compulsory liquidation. The department or company registration authority that has made a decision to revoke the company's business license, order the company to close down or cancel the company may apply to the people's court to designate relevant personnel to set up a liquidation group to carry out compulsory liquidation.

2. Responsibilities of liquidation group.

(1) Authority of the liquidation group.

During the liquidation of the company, the duties of the legal representative, the board of directors, senior management and other business executive agencies shall be carried out by the liquidation group on behalf of the company. Article 234 of the new "Company Law" stipulates that the powers of the liquidation team during the liquidation period: clean up the company's property, prepare the balance sheet and property list; notify and announce creditors; handle the company's outstanding business related to liquidation; Pay back taxes and taxes generated during liquidation; clean up claims and debts; distribute the remaining company property after paying off the company's debts; represent the company in litigation and arbitration activities.

Article 238 of the new "Company Law" stipulates that if a member of the liquidation team neglects to perform liquidation duties and causes losses to the company, or causes losses to creditors due to intentional or gross negligence, he shall be liable for compensation.

(2) The relationship between the liquidation group and the shareholders' (general) meeting and the supervisory board.

The liquidation group is the executive body of the liquidation business, and major liquidation matters such as the selection and dismissal of the members of the liquidation group, the confirmation of the liquidation plan and the liquidation report are still decided by the shareholders' (general) meeting and are subject to the supervision of the supervisor (committee).

3. Announce the liquidation group information.

Within ten days from the date of establishment, the liquidation group shall announce the following information of the liquidation group through the national enterprise credit information publicity system: company name, unified social credit code, registration authority, date of establishment of the liquidation group, reason for cancellation, office address of the liquidation group, contact number of the liquidation group, members of the liquidation group, etc.

4, notice, announcement creditors.

Article 235 of the new "Company Law" stipulates that the liquidation team shall notify creditors within 10 days from the date of establishment, and announce the following information in newspapers or the national enterprise credit information publicity system within 60 days: company name, Unified social credit code, registration authority, announcement period, announcement content, creditor's rights declaration contact person, creditor's rights declaration contact number, creditor's rights declaration address, etc., the announcement period is 45 days. Creditors shall declare their claims to the liquidation group within 30 days from the date of receipt of the notice, or within 45 days from the date of announcement if they have not received the notice.

5, to carry out liquidation activities.

(1) To clean up the company's property, prepare a balance sheet and an inventory of property, and formulate a liquidation plan. The self-liquidation plan shall be submitted to the shareholders' meeting for confirmation, and the compulsory liquidation plan shall be submitted to the people's court for confirmation.

The liquidation group shall not carry out business activities unrelated to liquidation.

(2) The main contents of the liquidation plan. Pay liquidation expenses, employees' wages, social insurance expenses and legal compensation, and pay taxes owed; distribute the remaining company property after paying off debts according to the proportion of capital contribution or shares, and the company property shall not be distributed to shareholders before paying off the company's debts according to law; handle the company's outstanding business related to liquidation; clean up creditor's rights and debts; participate in litigation and arbitration activities on behalf of the company.

6, liquidation to bankruptcy.

The premise of self-liquidation and compulsory liquidation is that the company's assets can cover all debts. If the liquidation team finds that the company's property is insufficient to pay off its debts after cleaning up the company's property and preparing the balance sheet and property inventory, it shall apply to the people's court for bankruptcy liquidation in accordance with the law.

7, the production of liquidation reports.

After the liquidation activities are completed, the liquidation group shall prepare a liquidation report. The self-liquidation report shall be submitted to the shareholders' meeting for confirmation, and the compulsory liquidation report shall be submitted to the people's court for confirmation. The confirmed liquidation report shall be submitted to the company registration authority to apply for cancellation of registration.

Ordinary cancellation does not allow the cancellation of company registration without liquidation, and simple cancellation allows the cancellation of company registration without liquidation after all shareholders have made a written commitment. The preparation before the simple cancellation is mainly a written commitment by all shareholders of the company.

1, the shareholders written commitment content.

(1) No claims or debts have been liquidated, there are no outstanding liquidation expenses, employee wages, social insurance expenses, statutory compensation and unpaid taxes payable and other outstanding matters, and the liquidation work has been fully completed.

(2) There are no circumstances in which simplified cancellation registration is not applicable.

(3) All investors are responsible for the authenticity of the above commitments. If they break the law and break their promises, all investors shall bear the corresponding legal consequences and voluntarily accept the constraints and punishments of administrative law enforcement departments.

2, shareholders abuse of summary write-off legal liability.

If the company does not meet the conditions for simple cancellation and the shareholders make false promises to simply cancel the company's registration, according to the third paragraph of Article 240 of the new Company Law and Article 20 of the Judicial Interpretation (II) of the Company Law, creditors have the right to require shareholders to bear joint and several liability for the company's outstanding debts, which is far greater than the limited liability of shareholders to the extent of subscribed capital contributions in the case of ordinary cancellation.

The preparatory work before compulsory cancellation is mainly that the company registration authority announces the cancellation of company registration through the national enterprise credit information publicity system.

According to the provisions of Articles 232 and 246 of the new Company Law, within 15 days from the date when the company's business license is revoked, ordered to close down or revoked, the company liquidation obligor shall form a liquidation group to liquidate the company. If the company registration has not been canceled for three years from the date of revocation of its business license, order to close down or revocation, the company registration authority may make an announcement through the national enterprise credit information publicity system, and the announcement period shall not be less than 60 days. After the expiration of the announcement period, if there is no objection, the company registration authority may cancel the company registration.

1. Apply for cancellation of tax registration.

For companies that have not occurred or have completed tax-related matters, the tax authorities may issue tax clearance documents. For companies that have not completed tax-related matters and do not meet the immediate processing conditions of the commitment system, the tax authorities will not cancel them. If a company that has been declared bankrupt or forced liquidation by the people's court applies for tax cancellation with the ruling of the people's court to terminate the bankruptcy procedure or the compulsory liquidation procedure, the tax department shall immediately issue a tax settlement document.

Apply for cancellation of company registration after cancellation of tax registration.

2, apply for customs declaration unit for the record cancellation.

Companies that have a customs declaration unit for the record at the customs should submit an application for cancellation of the customs declaration unit through the official website of the China International Trade Single Window and the Internet Customs of the General Administration of Customs. Tax arrears (including late fees), fines and other customs formalities that should be completed before applying for cancellation.

The customs declaration unit shall apply for the cancellation of the company registration after the cancellation of the record.

3, apply for cancellation of company registration.

To apply for the cancellation of the company's registration, relevant materials such as the application for cancellation of registration, the resolution or approval of the cancellation of the shareholders' meeting, the confirmed liquidation report and the tax clearance certificate shall be submitted. Before a company applies for deregistration, it shall handle the deregistration of its branch in accordance with the law.

4, apply for cancellation of social insurance registration.

Within 30 days from the date of cancellation of company registration, the liquidation group shall go through the procedures for cancellation of social insurance registration with the original social insurance registration institution. The social insurance premiums, late fees and fines owed by the company shall be settled before the cancellation of social insurance registration.

1, issued a simple cancellation announcement.

The company logs in and cancels the "One Network" service platform or the "Simple Cancellation Announcement" column of the national enterprise credit information publicity system, and actively announces to the public the information such as the proposed application for simple cancellation registration and the commitment of all investors. The announcement period is 20 days.

After the release of the simplified cancellation announcement, the company shall not engage in business activities unrelated to the cancellation.

2. Objection to the summary cancellation announcement.

During the announcement period, interested parties and relevant government departments may raise objections and briefly state their reasons through the "Objection Message" function of the "Simple Cancellation Announcement" column of the National Enterprise Credit Information Disclosure System.

3, apply for cancellation of company registration.

If there is no objection to the expiration of the announcement period, the company shall, within 20 days from the date of the expiration of the announcement period, handle the simple cancellation registration with the registration authority. If the deadline is not completed, the registration authority may extend the time limit according to the actual situation, and the maximum extension period shall not exceed 30 days.

1, issued a mandatory cancellation announcement.

The company registration authority shall issue a compulsory cancellation notice in the national enterprise credit information publicity system, and the notice period shall not be less than 60 days.

2. Cancellation of company registration.

After the expiration of the announcement period, if there is no objection, the company registration authority cancels the company registration.

A public announcement shall be issued in the national enterprise credit information publicity system to notify all shareholders to hold a shareholders' (general) meeting and make a resolution of the shareholders' (general) meeting of the dissolved company in accordance with the law and the articles of association. If necessary, the resolution of the shareholders' (general) meeting shall determine the members of the liquidation group.

If the company can be simply canceled, it may, in accordance with the resolution of the shareholders' (general) meeting of the dissolved company, directly issue a simple cancellation announcement in the national enterprise credit information publicity system, and then apply to the company registration authority for cancellation of company registration.

If the company cannot be simply canceled, a liquidation group shall be established to carry out liquidation activities. In the national enterprise credit information publicity system to issue an announcement, notify all shareholders to hold a shareholders' (general) meeting, vote on the liquidation plan and liquidation report. After the liquidation report is confirmed by the shareholders' (general) meeting, the company may apply to the company registration authority for cancellation of the company registration.

If the company's business license is lost, it is sufficient to publish a notice of loss in the national enterprise credit information publicity system or newspaper, and there is no need to apply for a replacement business license.

If the official seal of the company is lost, the shareholders of the company may sign and seal the relevant liquidation documents and the documents applying for cancellation of the company registration instead of the official seal of the company. The proportion of voting rights represented by the shareholders with their signatures and seals shall comply with the provisions of the third paragraph of Article 66 of the new Company Law and the articles of association of the company.

If the unit shareholder's prior cancellation makes it difficult for the company to cancel the registration, if the shareholder has a superior competent unit, the superior competent unit shall apply for cancellation procedures according to law; if the shareholder has a legal successor, the successor shall go through the cancellation procedures according to law; if the shareholder has no superior competent unit or successor, the shareholder or investor registered at the time of cancellation shall apply for cancellation procedures according to law. If the death of a natural person shareholder makes it difficult for the company to cancel its registration, its heirs shall apply for cancellation procedures on their behalf in accordance with the law.

Before the company cancels its registration, it shall handle the cancellation registration of its branches in accordance with the law. If the company has not gone through the cancellation of the registration of the branch in accordance with the law before the cancellation of the registration, if the canceled company has a legal successor, the successor shall go through the cancellation procedures of the branch in accordance with the law; if the canceled company has no legal successor, the shareholders or contributors registered at the time of the company's cancellation shall apply for the cancellation procedures of the branch in accordance with the law.

If the legal representative is declared missing, dead or does not cooperate with the cancellation of company registration, the company shall apply for the registration of the change of the legal representative at the same time when applying for the cancellation of the company registration on the basis of the legal representative's appointment and removal documents made in accordance with the law, and the new legal representative shall sign the application for company cancellation of registration.

Shanghai Higher People's Court's "Answers to Several Questions on How to Deal with the Property Rights and Interests Enjoying the Company after Cancellation according to Law" and the main points of civil judgments such as (2015) Lu Min Di Zi No. 229, (2019) Liao 02 Min Zhong No. 10228, (2020) E 01 Min Zhong No. 11319, (2020) Chuan 01 Min Zhong No. 2528, (2022) Bing 13 Min Zhong No. 35, rules for disposing of omitted claims or other property interests are summarized.

1. Unliquidated claims or other property interests belong to shareholders.

If the registration of the company is canceled after self-liquidation, if it is found that the original company enjoys claims or other property rights and interests, in accordance with the principle of succession of civil rights and obligations, all shareholders of the original company, as successors of the rights and obligations of the original company, become the subject of the rights of the claims or other property rights and interests.

2. Creditors may claim rights against unliquidated claims or other property interests.

Unliquidated claims or other property interests that would have been the property of the original company should first be used to pay off the company's debts. After the shareholders have claimed and realized the rights of claims or other property interests that have not yet been liquidated, if the original company has outstanding debts, the creditors may claim their rights against the beneficiary shareholders.

3. The liquidation group shall recover the unliquidated claims or other property interests.

If the registration of the company is canceled after compulsory liquidation, if it is found that the original company enjoys creditor's rights or other property rights and interests, the liquidation group shall, after recovery, pay off the debts of the original company in accordance with the relevant provisions of the new Company Law, and the remaining property after unified settlement shall be distributed to shareholders in accordance with the law.

If the registration of the company is canceled after bankruptcy liquidation, if it is found that the original company enjoys creditor's rights or other property rights and interests, the liquidation group shall, after recovery, pay off the debts of the original company in accordance with the relevant provisions of the enterprise bankruptcy law.

Articles 18 and 19 of the (II) Provisions of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Company Law (2020 Amendment) stipulate the rules under which creditors may require the liquidation obligor to bear the debts that have not yet been repaid after the cancellation of the company.

1. If a liquidation group is not established in time for liquidation, resulting in property losses of the company and infringing on the interests of creditors, the liquidation obligor shall be liable to the creditors within the scope of the losses; if the company's main property, account books and documents cannot be liquidated due to the failure to perform the liquidation obligations in time, or if the company is canceled without liquidation, the creditor may require the liquidation obligor to bear joint and several liability for the company's debts.

2. If the liquidation obligor maliciously disposes of the company's property after the company is dissolved, the creditor may require the liquidation obligor to bear the liability for compensation within the scope of the loss caused; if the liquidation obligor fraudulently prepares a false liquidation report to defraud the company to cancel the registration, the creditor may require the liquidation obligor to bear the corresponding liability for compensation.

3, the company has not been liquidated in accordance with the law that the cancellation of registration, shareholders or third parties in the company registration authority for the cancellation of registration promised to be responsible for the company's debts, shareholders or third parties should bear the corresponding civil liability to the creditors of the company's debts.