Finite responsibility principle has shareholder two meanings: One of, partner with its contributive forehead or place hold share in the limit of to assume responsibility to the company, this kind of responsibility belongs to legal finite responsibility; Secondly, company absolute liability, stockholder liability and company liability depart each other.
Partner is responsible to the company, incorrect company creditor is responsible; The responsibility of the company belongs to company liability, in principle cannot undertake recovering to partner, i.e. company has independent legal person moral quality, its serve as corporation or legal person is in jural can play civil law significance independently, enjoy the right and the main body qualification that assume obligation.
Accordingly, company way is right of the company cancel had strict restriction, the company is dealt with before cancelling an order, must undertake the company is liquidated lawfully, include to stop production to manage work of firm of sales compaign, finish, put to an end civil suit, clear creditor's rights and debt, allocate surplus property to wait.
In reality, if the company already was cancelled, but Shang Youxiang involves liability not pay off, how is the interest of creditor protected? Whether be opposite directly company shareholder to lodge a complaint? Find out stockholder liability to should be being denied below this kind of circumstance, basically have the following two kinds of viewpoints:
1, prop up in what stockholder liability finds out to lack law below this kind of circumstance, if be in a company,the course still finds out the word of stockholder liability, will naturally destroy system of company legal person.
2, the basic principle that honest credence principle is civil code, partner violates honest credence principle and assume what corresponding responsibility cannot say to do not have law to prop up, find out stockholder liability directly more be helpful for perfecting system of company legal person.
This kind of circumstance should be classified discuss, if the company is liquidated strictly lawfully, in industrial and commercial administration mechanism is dealt with cancel register, character of its legal person is eliminated absolutely ground, permanently, its cannot the debt of pay off is absolved lawfully. But the circumstance that in be aimed at practice, abounds in to be cancelled namely without be being liquidated lawfully, those although liquidate,also discovers hard recessive debt of existence, in the dispute that after the enterprise is cancelled, just causes, if continue,hold to stockholder liability right now finite, show to the benefit protection of creditor belong to adverse.
Involve right now " open company veil " system, as above, the company has the enterprise of independent character to organize system as a kind, with its all belongings assume responsibility external, the partner of the company assumes finite responsibility to debenture Wu with its investment in the limit of only, consequently the character of independent legal person of the company resembles the responsibility of company of a veil general and partner parting, although company worth fails to repay entirely all debt of the company, company shareholder also spares of company creditor recover. But, if partner uses the character of independent legal person of the company to be engaged in all sorts of avoid law and the act that violate, when the interest that harms company creditor, to protect the interest of creditor, market economy order that maintains stability, it is under specific situation, should open company mysterious veil, find out the relevant and civil liability of partner.
In practice, the company is cancelled and have not the case of pay off debt abounds in, and state by no means an isolated case, the adjudicative condition that we carry a series of cases below comes detailed illuminate.
1, all did not liquidate duty
Cancel a company namely without liquidation, dodge the creditor
Because make fine art, Chen Jingliang idle at fulfilling partner obligation, company of indulge Zheng Dong continues to forge formalities to deal with a company to cancel, bring about company of fontal city beautiful man to be cancelled namely without liquidation, asset already was ended by processing, cannot undertake liquidating, company of reason Zheng Dong, Xu Liang art, Chen Jingliang answers company of man of fontal city beauty to owe 100 promote company payment for goods to assume pay off responsibility.
Liquidation does not inform creditor, cancel by oneself
Flourish Xin company was not informing creditor of Jin Long to the circumstance of the company falls, undertook liquidate and be cancellinged to the company, affirmatory if liquidate a report truthless or still have did not clear finished debt, assume responsibility in proportion by all partner. Basis " top people court about applicable < company law of People's Republic of China > the regulation of a certain number of problems (2) " the 19th, the 20th regulation reachs afore-mentioned affirmatory content, become effective court decision sentences your Feng Juan to get, Zhang Fei week assumes responsibility of implicative pay off to 125338 yuan debt and all without exception is become.
Through above the court decision is seen, liquidate very much when partner or liquidation team member duty (this kind of behavior can be active as, also can be inactive nonfeasance) cause company worth prediction of a person's luck in a given year, devalue, even the belongings of illicit branch, the creditor's rights that causes creditor gets actual losing, ought to assume liability to pay compensation to creditor. No matter be in liquidation process or this kind of squares responsibility very much act of partner is exposed after the company is cancelled, partner all should assume liability to pay compensation to creditor.
Law link
" company law of People's Republic of China " the 190th:
The member that liquidation is comprised ought to devoted to post, fulfil liquidation obligation lawfully. The member that liquidation is comprised does not get jobbery to receive bribery other perhaps and illegal income, do not get embezzlement company worth. Because the member that liquidation is comprised perhaps weighs big error to give a company intentionally or creditor causes losing, ought to assume liability to pay compensation.
2, partner acceptance assumes debenture Wu and cancel a company
In reality, some company shareholder are in to industrial and commercial administration mechanism applies for to deal with a company to cancel when registering, the company did not undertake liquidating, but made similar " company staff is disbanded, each belongings and creditor's rights debt by partner (or open unit) take-over " , or " the creditor's rights debt of the company has cleared end " acceptance, and by industrial and commercial administration mechanism is registered in book, mechanism of industrial and commercial administration gives accordingly dealt with cancel register.
If be in a company to cancelled the partner in the process to issue corresponding affirmatory book, so, whether can the court adjudicate partner assumes pay off responsibility directly?
Partner gives commitment to assume responsibility by its
The company liquidation that the 3 the accused such as Zhang Baoan made on July 22, 2008 carries in the report bright " end two years to will stop on July 22, did not produce any liability; If have creditor's rights debt, assume corresponding responsibility by company shareholder " , after because this is in raw firm of day water benefit,be being cancelled, its get capital fund of mine of zinc of lead of channel of badge county Home Yan because of afterwards and the responsibility of civil tort damages that at the same time afterwards bore this mine agree to carry, ought to turn to be assumed by company shareholder Zhang Baoan, firm fairness, Li Chunlan.
Partner is cancelled with disloyal material give commitment at the same time
In this case, the Yuan Jiede company that the accused controls management board to issue to the market cancels liquidation to report existence is disloyal circumstance, show accuser to ask because of this two the accused assume implicative liability to pay compensation to the debt of Yuan Jiede company, regulation of be good law, this academy gives support.
In this case, two the accused are affirmatory in liquidating a report, debenture Wu already pay off ends, if have unfinished matters concerned, partner is willing to assume responsibility. . . . Two partner also express, debenture Wu is all already pay off. If have,did not discover, not the debt of pay off, continue to be in charge of pay off by partner. Afore-mentioned stating already making clear two the accused is to assume pay off responsibility to debt of unfinished of Yuan Jiede company, and rather than clears responsibility. Show accuser to choose to advocate two partner assume implicative liability to pay compensation to debt, actually qualitative result asks two the accused assume pay off responsibility namely.
After trade issue is reformed, the enterprise is simple and easy the process middling that cancel appears afore-mentioned these case, according to " the market superintends total bureau to perfect an enterprise further about beginning simple and easy cancel the reform that register the announcement of pilot job " , simple and easy cancel a need collectivity partner to issue affirmatory book, below this kind of circumstance, partner of forensic court decision is carried according to acceptance lawfully duty, proper,should belong to.
Law link
Top people court about applicable " company law of People's Republic of China " the regulation of a certain number of problems (2) (2014 amend) the 19th:
The trustee of the partner of finite liability company, Inc. and control a partner, and the effective control person of the company is disbanded in the company hind, ill will deals with company worth causes a loss to creditor, or without be being liquidated lawfully, with company of false liquidation report diddle the mechanism that register deals with legal person to cancel register, creditor advocates its assume corresponding liability to pay compensation to debenture Wu, people court should give lawfully support.
Top people court about applicable " company law of People's Republic of China " the regulation of a certain number of problems (2) (2014 amend) the 20th:
The company is disbanded ought to be in liquidate lawfully after ending, application is dealt with cancel register. The company is dealt with namely without liquidation cancel register, bring about a company to cannot undertake liquidating, the trustee of the shareholder that creditor urges finite liability company, Inc. and control a partner, and the effective control person of the company assumes pay off responsibility to debenture Wu, people court should give lawfully support.
The company is dealt with namely without be being liquidated lawfully cancel register, partner or the 3rd person is dealt with in the firm office that register cancel the acceptance when registering to assume responsibility to debenture Wu, creditor advocates its assume corresponding and civil responsibility to debenture Wu, people court should give lawfully support.
Attention: In debenture Wu have not when pay off ends although cancel a company, no matter be to use,conceal, the mechanism of fraudulent means diddle that register and creditor, or made commitment before cancelling a company, still should exist only have not the debt of pay off, generally speaking partner sneaks away impossibly. Finite system of job responsibility spends company shareholder is to encourage investment and business of the thing a kind of system that flourish and designs artificially, but, below the case that damages in partner or liquidation group ill will loan interest cancels a company, finite system of job responsibility spends partner is not baleful partner absolutely " umbrella " .
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