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The dissolution of a company refers to the legal act of a company that has been established and stops its external business activities due to the occurrence of the company's articles of association or legal reasons, and starts the liquidation of the company, and deals with the unresolved affairs so as to eliminate the company's legal personality. According to whether the dissolution of the company is voluntary, the dissolution of the company can be divided into two categories, one is the arbitrary dissolution of the cause; The other is the cause of compulsory dissolution.
[1]
- Chinese name
- Dissolution of company
- Foreign name
- dissolution of a company
- Cause classification
- Reasons for general dissolution and reasons for compulsory dissolution
- effect
- Enter liquidation procedure, etc
- By law
- Company Law
catalogue
Dissolution of company
There are three categories of reasons: one is the general reasons for dissolution; One is the cause of forced dissolution; One is a shareholder request for dissolution.
The general reason for dissolution is that the company can be dissolved as long as there is a cause for dissolution of the company. Our country
Company law
The prescribed common causes of dissolution are:
(1)
Articles of association
When the prescribed term of business expires or any other cause for dissolution as provided for in the articles of association occurs. However, in this case, the company can continue to exist by amending the articles of association, which does not mean that the company must be dissolved. A limited liability company may continue to exist if a resolution to amend its articles of association is passed by shareholders holding more than two-thirds of the voting rights, or by a joint stock limited company with more than two-thirds of the voting rights of shareholders present at a general meeting.
(2) The shareholders' meeting or the shareholders' general meeting decides to dissolve.
The reason for compulsory dissolution means that the competent authority or the people's court orders the company to dissolve due to certain circumstances. The reasons for compulsory dissolution of a company according to the Company law are as follows:
(1) Decision of the competent authority.
Wholly state-owned company
If the State authorized investment institution or state authorized department makes a decision to dissolve, the wholly state-owned company shall be dissolved immediately.
(2) Order closure. If a company violates laws or administrative regulations and is ordered to close down by the competent authority according to law, it shall be dissolved.
(3) The business license is revoked.
The newly revised Company law stipulates that when the company has serious difficulties in operation and management, its continued existence will cause significant losses to the interests of shareholders, and if it cannot be solved through other means, it shall hold the whole company
Voting rights of shareholders
More than 10% of the shareholders may request the people's court to dissolve the company.
Whether dissolution leads to the termination of the company's legal personality varies from country to country, the United Kingdom implemented the "first count and then scatter" system, dissolution means the termination of the company's legal personality, China implemented the "first scatter and then calculate" system, the United States, Japan and continental European countries are also, this dissolution does not lead to the elimination of the company's legal personality, but leads to
Liquidation procedure
The occurrence of. Only after the liquidation is completed, the corporate personality of the company will be eliminated.
1. Enter liquidation procedure
Except as a result of merger,
discrete
In addition to dissolution, in other cases of dissolution, the company must proceed
liquidation
. The existing existence of the dissolved company is terminated through liquidation
Legal relationship
To distribute the remaining property, thereby ultimately eliminating its legal personality.
2. The Company shall continue to exist, but shall cease active business activities
During the liquidation period, the company shall remain in existence but shall not carry out active business activities, that is, its activities shall be limited to matters related to the liquidation.
3. The dissolved company can still be restored under certain circumstances
There are no regulations in our country. A company that is granted voluntary dissolution in Japan shall be reinstated by a resolution of the general meeting of shareholders before the liquidation is completed. The same is true in Germany.
1. Set up a liquidation group
When the company is dissolved, it shall be liquidated according to law. According to the provisions of the Company Law, the company shall set up a liquidation group within 15 days from the date of the cause of dissolution. According to the judicial interpretation of the Supreme People's Court, under any of the following circumstances, the people's Court shall accept the application of the creditor to the people's court to appoint a liquidation team for liquidation:
(1) the company fails to set up a liquidation group for liquidation within the time limit of dissolution;
(2) Deliberately delaying liquidation despite the establishment of a liquidation group;
(3) Illegal liquidation may seriously damage the interests of creditors or shareholders.
Under the above circumstances, if the creditors have not filed an application for liquidation and the shareholders of the company apply to the people's court to appoint a liquidation team to liquidate the company, the people's court shall accept the application.
The liquidation group of a limited liability company shall be composed of the shareholders, and the liquidation group of a joint stock limited company shall be composed of the directors or other personnel determined by the shareholders' meeting. When accepting a company liquidation case, the people's court shall promptly appoint relevant personnel to form a liquidation group. Members of the liquidation group may be selected from the following persons or institutions:
(2) Law firms established according to law,
Accounting firm
, bankruptcy and liquidation firms and other social intermediary institutions;
(3) Persons who have relevant professional knowledge and have obtained practicing qualifications in law firms, accounting firms, bankruptcy liquidation firms and other social intermediary institutions established according to law.
2. Functions and powers of the liquidation Group
According to the provisions of the Company Law, the liquidation group shall exercise the following powers during the liquidation period:
(1) Clean up the company's assets and prepare them separately
Balance sheet
And inventory of property;
(2) Notify and announce creditors;
(3) dealing with the company's outstanding business in connection with liquidation;
(4) to settle the taxes owed and the taxes generated during the liquidation process;
(5) to settle claims and debts;
(6) Dispose of the remaining property of the company after the repayment of debts;
(7) Participating in civil litigation activities on behalf of the company.
The liquidation team will conduct a series of civil activities on behalf of the company during the liquidation of the company, and fully handle the company's economic affairs and civil litigation activities. According to the provisions of the Company Law, members of the liquidation group shall be loyal to their duties and fulfill their liquidation obligations according to law. No member of the liquidation group shall take advantage of his power to accept bribes or other illegal income, and shall not encroach on the property of the company. If any member of the liquidation group causes losses to the company or creditors due to intent or gross negligence, he shall be liable for compensation.
3. Liquidation procedures
The liquidation procedures are generally as follows:
1. Register claims
The liquidation group shall notify the creditors within 10 days from the date of its establishment, and make a public announcement in a newspaper within 60 days. Creditors shall, 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, report their claims to the liquidation group. If the creditor fails to declare his creditor's rights within the prescribed time limit and makes a supplementary declaration before the end of the liquidation procedure of the company, the liquidation group shall register. The creditor's right that is added to the declaration may be paid off in accordance with law from the company's undistributed property. The conclusion of the liquidation procedure of the company means that the liquidation report has been confirmed by the shareholders' meeting, the shareholders' meeting or the people's court.
If the liquidation group fails to fulfill the obligations of notification and announcement in accordance with the provisions of the preceding paragraph, and the creditors fail to declare their claims in time and are not satisfied, the members of the liquidation group shall be liable for compensation for the losses caused thereby.
In declaring a creditor's right, the creditor shall explain the relevant matters of the creditor's right and provide supporting materials. The liquidation group shall register the creditor's rights. During the period of filing claims, the liquidation group shall not pay off the creditors.
2. Liquidate the company's assets and make liquidation plans
The liquidation group shall liquidate the company's assets, prepare a balance sheet and a list of assets, and work out a liquidation plan. The liquidation plan shall be submitted to the shareholders' meeting, the shareholders' meeting or the people's court for confirmation. If the liquidation group's execution of the unconfirmed liquidation plan causes losses to the company or creditors, the company, shareholders or creditors shall have the right to demand that the liquidation group's personnel bear the liability for compensation.
At the time of dissolution of the company, the capital contribution not yet paid by the shareholders shall be regarded as liquidation property. The shareholder's outstanding contribution shall include the outstanding contribution which is due to be paid and the contribution which has not yet expired shall be paid in installments in accordance with the provisions of Articles 26 and 81 of the Company Law.
If the liquidation group finds that the company's assets are insufficient to pay off its debts after clearing up the company's assets and preparing the balance sheet and property list, it shall apply to the people's court for declaration of bankruptcy according to law. If the liquidation group appointed by the people's court finds that the company's property is insufficient to pay off its debts when it liquidates the company's property and prepares the balance sheet and financial statement, it may, through consultation with creditors, prepare a plan for the repayment of its debts. If the debt repayment plan is confirmed by all creditors and does not harm the interests of other interested parties, the people's court may make an order to approve it upon the application of the liquidation group.
3. Pay off debts
The assets of the company shall respectively pay the liquidation expenses, the wages of the employees, the social insurance expenses and the expenses of the employees
Statutory compensation
The remaining property after paying the taxes owed and paying off the debts of the company shall be distributed in proportion to the capital contribution of the shareholders of the limited liability company and in proportion to the shares held by the shareholders of the joint stock limited company. During the liquidation period, the company shall continue to exist, but shall not carry out any business activities unrelated to the liquidation. The property of the company shall not be distributed to the shareholders before it is paid off in accordance with the above-mentioned provisions.
4. Announce the termination of the company
After the liquidation of the company, the liquidation group shall prepare a liquidation report, submit it to the shareholders' meeting, the shareholders' meeting or the people's court for confirmation, submit it to the company registration authority, apply for cancellation of the company registration, and announce the termination of the company.
If the company is unable to carry out liquidation due to the cancellation of registration without liquidation, the creditors have the right to require the shareholders of the limited liability company, the directors and controlling shareholders of the joint stock limited company, and the actual controller of the company to bear the repayment liability for the debts of the company.
