Viewpoint. Under the new company law, the legal risk and prevention of company dissolution and liquidation.

The new "Company Law" stipulates that if a company is dissolved for reasons prescribed by law, it shall form a liquidation group within 15 days from the date of the dissolution. The directors shall be the obligors of the liquidation of the company, and the liquidation group shall be composed of directors, unless otherwise provided in the articles of association or the shareholders' meeting resolves to elect another person. If the liquidation obligor fails to perform the liquidation obligation in time and causes losses to the company or creditors, he shall be liable for compensation.

The new Company Law makes it clear that the liquidation obligor of a company is a director, but in the original provisions there is no concept of "liquidation obligor", but only the composition of the liquidation group. This time, the subject and responsibility of the "liquidation obligor" are clarified, so that the liquidation can be implemented to the person.

If the company should be liquidated but is lazy in liquidation, such as failing to establish a liquidation group within the time limit or not liquidating after the establishment of a liquidation group, the relevant right holder may apply to the people's court to designate relevant personnel to form a liquidation group for liquidation. The relevant right holders here are only "creditors" in the original "Company Law", and are stipulated as "interested parties" in the new "Company Law", which expands the scope. Creditors, shareholders of the company, etc. can be "interested parties", which is also conducive to the protection of the rights and interests of minority shareholders.

In addition, the new "Company Law" also grants the relevant administrative departments the right to apply for the liquidation of the company. If a company is dissolved due to the revocation of its business license, the order to close down or the revocation of the company, the department or the company registration authority that made the decision to revoke the business license, order to close down or revoke the company may apply to the people's court to designate relevant personnel to form a liquidation team to carry out liquidation. For example, for some companies that have not been operating for a long time, the market supervision and management department can not only revoke the company's business license according to its authority, but also apply to the people's court to organize liquidation of these companies and completely cancel the above-mentioned companies.

The liquidation of a company refers to the procedure for the purpose of settling all legal relations of the company and distributing the company's property before the main body of the company is canceled.

Corporate liquidation includes the following types:

According to the provisions of the company law, the dissolution and liquidation process is as follows:

Risk 1:The company shall enter the dissolution procedure at the expiration of the business period stipulated in the articles of association, and if it continues to operate, it shall amend the articles of association and change the registration in a timely manner, otherwise it is easy to have disputes over the effectiveness of the act and face administrative penalties.

Risk analysis and prevention:At the expiration of the business term, the company has neither entered the dissolution and liquidation procedures, nor amended the articles of association to continue to operate, easy to make the company in the absence of survival basis to continue to carry out business activities, at this time the company's main qualification and external transactions are prone to disputes. If the company continues to operate after the expiration of the business period, it shall vote on the extension of the company's operating period by amending the articles of association and convening a shareholders' meeting. After the voting is passed, the company shall amend the articles of association in time and register with the market supervision and management department in time. If you do not change the registration in time, you will face administrative penalties.

Related articles:Article 230 of the the People's Republic of China Company Law

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Risk 2:After the occurrence of a voluntary dissolution, if property has been distributed to shareholders, the company's operations cannot be continued through a dissolution reversal.

Risk analysis and prevention:The dissolution of the company can be divided into voluntary dissolution and compulsory dissolution. Voluntary dissolution includes two situations: 1. The business period stipulated in the articles of association expires or other reasons for dissolution stipulated in the articles of association occur. 2, the shareholders' meeting resolution dissolution. According to the law, the cause of dissolution should be dissolved and entered into liquidation proceedings, but in practice, the company often has the ability and willingness to continue to operate after the occurrence of the above two causes, so that the company can continue to operate by amending the articles of association or making a resolution through dissolution and turnover, but only if the property has not been distributed to the shareholders. The distribution of property to shareholders means that the liquidation process is about to end and the company is objectively unable to continue to operate.

Related articles:Article 230 of the the People's Republic of China Company Law

Risk 1:In the event of a dissolution of the company, the liquidation obligor shall promptly fulfill its liquidation obligations and enter into liquidation proceedings, otherwise it will face the risk of assuming liquidation liability.

Risk analysis and prevention:The liquidation proceedings shall be initiated within 15 days after the occurrence of a cause for dissolution of the company by the directors of the company or other liquidation obligors as stipulated in the articles of association or elected by resolution.

The operation of the company should establish a strict file management system and accounting system, and the liquidation obligor should properly keep the company's books and important documents during the liquidation process.

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Risk 2:The request of the company's creditors to the liquidation obligor to assume liquidation liability shall not exceed the statute of limitations.

Risk analysis and prevention:The Minutes of the National Court Conference on Civil and Commercial Trials set the starting point of the statute of limitations for liquidation liability as "the statute of limitations period shall be calculated from the date on which the creditors of the company knew or should have known that the company could not be liquidated", but in practice there are different views on the determination of the date on which they knew or should have known that the company could not be liquidated. The judicial practice point of view is summarized into three kinds: first, from the end of the company's compulsory liquidation procedure, second, from the date of the final ruling of the creditor's enforcement procedure, and third, the cause of the dissolution of the company, the liquidation obligation does not start the liquidation procedure within 15 days.

According to the above summary, there are different starting points for the statute of limitations, so creditors should file proceedings as soon as possible to protect their claims to avoid exceeding the statute of limitations.

Related articles:Article 16 of the Minutes of the National Court Conference on Civil and Commercial Trials

Risk 3:The liquidation group shall promptly notify the creditors and make an announcement after its establishment, and if it fails to notify the creditors, it will face the risk of liability.

Risk analysis and prevention:The Company Law and Interpretation II of the Company Law stipulate that the liquidation group shall notify the creditors and make a public announcement within 10 days of its establishment. In practice, the liquidation group often fails to notify the creditors intentionally or fails to fully notify the creditors due to negligence in order to evade repayment. If the interests of the creditors are damaged due to such behavior, the creditors may file a lawsuit to require the liquidator to bear the liability for compensation. Therefore, the liquidation group shall notify the creditors and make a public announcement as soon as soon as possible.

Related articles:Article 235 of the the People's Republic of China Company Law

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Risk 4:The members of the liquidation group shall perform their liquidation duties and shall have the duty of loyalty and diligence. The liquidation plan designated by the liquidation group shall be submitted to the people's court or the shareholders' meeting for confirmation, and if the implementation of the unconfirmed plan causes damage to the interests of the company or relevant interested parties, it will face the risk of liability.

Risk analysis and prevention:If the members of the liquidation group neglect to perform their liquidation duties and cause losses to the company, they shall be liable for compensation; if they cause losses to creditors due to intentional or gross negligence, they shall be liable for compensation.

The Company Law stipulates that after liquidators have liquidated the company's property, prepared a balance sheet and an inventory of property, they shall formulate a liquidation plan and report it to the shareholders' meeting or the court for confirmation.

If the liquidation group implements an unconfirmed liquidation plan, resulting in loss of interests of the company, shareholders, directors, other interested parties or creditors of the company, it may request the members of the liquidation group of the company to bear the liability for compensation in accordance with the relevant provisions of the second interpretation of the company law. Therefore, it should be promptly reported to the court for confirmation in compulsory liquidation and to the shareholders' meeting for confirmation in self-liquidation.

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Risk 5:During the filing period, the liquidation group shall not pay off the creditors, otherwise the liquidation group is exposed to the risk of liability.

Risk analysis and prevention:The company law expressly prohibits the act of liquidating creditors during the filing period, based on the principle of equality of claims, otherwise the liquidator constitutes a breach of the duty of loyalty. If the settlement infringes the interests of other creditors, it shall be liable for compensation, and therefore the liquidation group shall, after entering the liquidation proceedings, pay off in the order prescribed by the Company Law. During the declaration of claims, it is not allowed for individual shareholders to want creditors who have an interest in them to be paid in advance.

Related articles:Articles 235 and 238 of the the People's Republic of China Company Law

Risk 6:If the debt is simply written off before it is fully paid off, all shareholders are jointly and severally liable for the debt.

Risk analysis and prevention:The new company law adds a simple cancellation procedure, which simplifies the requirements and time of the company's cancellation procedure and is more efficient and convenient. There are two requirements for simple write-off: first, there is no outstanding debt, and second, all shareholders make a written commitment. In short, the simple write-off is that all shareholders can handle the write-off after the commitment, but the result is that the creditors who have not yet been paid off can directly require all shareholders to bear joint and several liability. In practice, some small shareholders do not understand the company's operation and creditor's rights and debts, it is very likely that other shareholders persuaded to sign a letter of commitment to agree to cancel the company, thus bringing their own joint and several liability for debt settlement. Therefore, shareholders should check all debts before making a summary write-off to avoid risks.

If the company has no debt or the debt is fully paid off, the company can be simply written off. However, if the shareholders of the company have made a simple write-off by deception and evaded the debt, all shareholders are jointly and severally liable for the debt before the write-off.

Related articles:Article 240 of the the People's Republic of China Company Law