On the theoretical basis for judicial dissolution of the company

Summary: October 27, 2005 the Tenth NPC Standing Committee and by the eighteenth session of the <<People's Republic of solid corporate Law>>, a major breakthrough in the Law expressly provides that the judicial dissolution of the company's situation. Secretary for Justice is a set of dissolution of the rights of shareholders of the relief system. reflects the judicial power of the Secretary of the sets involved in the dissolution of this paper from the jurisprudence, Civil Law and company Law and other point of view, discusses the company's system of judicial dissolution of the established theoretical basis.

Keywords: corporate Law theory of judicial dissolution of the fundamental values

Dissolution of the company is already established company Articles of association occurred because the subject matter, the resolution of the shareholders or outside of bankruptcy law in addition to the subject matter and stop operations, and liquidation of the state and the steps which the management company serious difficulties, to continue the existence of the interests of shareholders will be significant losses, can not be solved by other means, the court based on the request of shareholders to force the dissolution of the company called the judicial dissolution of the company.

The design of any of the legal system, must have a solid theoretical foundation to pave the way, the dissolution of the company Justice system is no exception. The following from the jurisprudence, Civil law and company law and other judicial dissolution of the system point of view on the company to establish the theoretical basis.


First, the jurisprudence of judicial dissolution of the company foundation - the fundamental values ​​of France

(A) the concept of Justice
"Only Justice can be achieved through good law", "law is good and just Art." The old law maxim that law is or should be a means of achieving Justice, the law's most important value is to achieve justice. Business is the modern market Economic and social cells, and the company is the most basic forms of organization business, company law as standardizing the establishment and organization of legal norms, the law should reflect the concept of justice, and through specific design of the system to achieve justice and the law of value.

Justice is a specific, historical context, contribute to the achievement of justice and law in different societies have different content, for people who is a relative concept of justice, but justice also has a consistent, common elements, that there is a insurmountable bottom line - just the concept, this concept does not allow for some greater interests at the expense of the minority interests, denied the rights of minorities. Capital is a majority vote of the basic principles of company law, investment and more as the major shareholder The small shareholders take over more responsibility and risk, so should gain control of the company, involved in the company's business decisions. This is consistent with the rights and obligations consistent with the principles, but the legal concept of justice does not allow major shareholders unconscionable the abuse of capital majority rule, ignore, limit or deprive the rights of minority shareholders when the shareholders of the use of holding large advantages from their own interests, the use of company property, and will become a shell company, the company will become the largest shareholder a tool for personal gain. Thus, the concept for the pursuit of justice, corporate law gives minority shareholders the right to request judicial dissolution.

(B) the concept of security
Personal safety and security, including social security, is subject to the enjoyment of other social values ​​(such as life, property, freedom, equality and other values) is an important condition, which itself has an important value. Hobbes (Hobbes) or the safety of first mentioned the value of the height, he said: "The human security but the supreme law", and the subordination of freedom and equality, he believed that if the property, life, liberty, are shrouded in the assault, disaster trap , then any good things for mankind will lose its value, so the creation of human beings from the date of the law, in seeking legal value and function.

Social order and the law itself is the right stabilizer, it is out of control power for the purposes of a suppressor, safe in the law has an important position and role security is important to develop the concept of company law, maintaining the company, shareholders , creditors and other related property is the main purpose of company law legislation. profit is an important feature of the company, the company different from the legal authorities, legal institutions and social groups, the fundamental symbol of corporate shareholders invested in the company's aim is to This form of Economic organization through the company to obtain benefits in the management of the company serious difficulties, and other special circumstances, not only the shareholders can not achieve the purpose of profit, shareholders' investment may be lost, then the shareholders will no longer have the property security, so when the company encounters serious difficulties in the operation and management, threat to the legitimate interests of shareholders, the shareholders, especially minority shareholders have the right to request judicial dissolution of the company may be dissolved to protect their rights, ensure their own property, which is consistent with safety legal values.


Second, the dissolution of the Civil law's theory of justice

(A) the agency theory
Agent is an agent based agency, the principal by the transaction for the client to bear the legal consequences of acts of the system. Agent system is important, first of all it expands the scope of activities of the Civil subject. Principal because of the time, energy, professional skills deficiencies, many things difficult to hands-on, but the need to achieve their own interests, which need to entrust others to handle, so the agent to the client's ability to be extended, as Pollock points out: "the individual agent system legal personality can be extended in space. "agent system can also add some of the Civil subject's lack of capacity. without civil capacity and limited capacity for civil conduct can not or will not completely through their own behavior to their own meaning for their own set of rights, obligations, and the agency can make these the subject of civil capacity to add. agency problem is difficult is to motivate the agent to act in the interests of agents, rather than seeking an agent to act in the interests of their own. Therefore, the agent must follow the principle of good faith in the agency, and strive to fulfill their obligations of due diligence and care, to fully safeguard the interests of being an agent.

Commercial companies will have a three-agent problem, one class of agency problems related to the company's controlling shareholders and minority shareholders or non-conflict of interest between controlling shareholders of which the non-controlling shareholders is an agent, and the controlling shareholder is the agent. the difficulty of such problems is to ensure that the exploits of the former against the latter, the law in reducing agency costs play a big role. obvious example is to improve the disclosure of information agents, convenient to be dishonest or negligent agent to agent bring a civil action rules and procedures. abuse of shareholder capital, majority rule and ownership advantages, malicious oppression of minority shareholders, against the interests of small shareholders is contrary to the principle of good faith, is the agency cost problem.

The establishment of the judicial dissolution of the system is reluctant to make major shareholders, major shareholders urged to exercise their rights according to the principle of good faith, or against the interests of small shareholders by the dissolution of the company may bring proceedings from this sense, the judicial dissolution of the system is based on the company's largest shareholder and agency problems between minority shareholders have, and its function is to promote the performance of small shareholders, major shareholders of fiduciary duty, thereby reducing agency costs when the major shareholder of the situation can not clean up abuse of power, the legitimate rights and interests of small shareholders will be seriously jeopardized, the small shareholders, judicial dissolution of the system can lift the agency relationship, get rid of bullying by the majority shareholder position.

(B) the rights of the theory of relief
Proverbs says: "There is bound to infringe on the right, there are bound to infringe on the relief." If the rights have been violated and can not be fully and timely relief, it would be empty talk. China <<Civil Code>> Article 5 : "Citizens, legal persons and the legitimate civil rights protected by law and any organization or individual shall not be violated."

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Between shareholders and the company's equity is a link. Our new <<Law "Article 4 states:" shareholders are legally entitled to capital gains, managers involved in major decisions and choose the right. "Equity can be defined as the shareholders based on the identity of its shareholders and position enjoys Economic benefits from the company and the right to pArticipate in company management. on the nature of equity are claims that the property that (title says), the status of members and shareholders the right to say that different point of view, the most typical and property claims that are said (that title) point of view, but civil rights is open and development, with social development will generate many new civil rights, equity, that is one of them. shareholding from the corporate system, and the company is produced only in modern times, especially limited liability companies and limited the rise of large-scale also 100 years. shareholding generation than property rights, claims much later, but the content is more than the rich and property and debt complex can simply use the property or debt to equity to characterize the equity classified as a new, independent and comprehensive property rights.

Equity as a property right should be protected by law, when the shares are violated, shareholders are entitled to relief through a variety of ways to safeguard their rights. In general, the relief for infringement of its relief efforts and ways to harm not happen as the standard. Based on this, when the interests of shareholders suffered losses in other remedy unfavorable, shall have the right to request the court to dissolve the company as a last remedy. justice is the ultimate way to resolve conflicts of interest, to resolve social disputes of the last barrier.'s law litigation, the vast majority occur because of internal relations, whether it is the shareholders of the Company v. or shareholders and the shareholders of the complaint, whether it is asked to confirm the general meeting of shareholders or the board of directors resolution of the complaint is invalid, or the company's shareholders or directors compensation of the complaint, are typical of internal relations caused by the litigation, the judiciary can not because of its internal relations are rejected.


Third, the judicial dissolution of the company's corporate law theory

(I) contract theory
Understanding of the nature of the company, French economist, put forward their own particular views, the so-called company "contractual relationship" theory. The theory that the company is a collection of various elements, the production or services toward a common goal. " But just as Congress is a bunch of independent politicians and staff consisting of a collection of concept ", a collection of factors including the company's employees, managers, shareholders, creditors (including long-term customers, bondholders, and even business tort creditors), They combine their own arrangements for a variety of voluntary transactions, they jointly by a complex chain binding contractual relationship. employees and managers working capital, equity capital provided by shareholders, creditors provide debt capital to share the risk of loss, overseeing the company's management implementation.

Economic Analysis of Law of the company as a "contract Cambodia", that the company itself is a contract between the network, the state enacted the law, some companies reserve clause, an agreement by the parties to modify the form. "According to the company contract theory, shareholders entered into the Articles of Association set up a company or companies joined the company after the establishment of all that exists between shareholders and the shareholders contractual relationship between the shareholders for voluntary corporate affairs, on the basis of mutual benefit and mutual activities since the company is a "contract Cambodia "is a consensus among shareholders on the basis of a contract, it should implement the principle of freedom of contract, although the principle of freedom of contract is rich in content, the performance of diverse forms, but it is undeniable, the lifting of freedom of contract freedom of an important aspect of the parties after the conclusion of the contract, a party fails to perform or do not fully comply with contractual obligations resulting in the other party can not achieve the purpose of the contract, the non-defaulting party may terminate the contract.

Similarly, in the Companies Act, according to the interests of Anglo-American tradition of looking forward to come to the theory, shareholders are entitled to expect, the right to expect the company's personality and characteristics to maintain a specific business continuity if the company's personality and characteristics of specific business fundamental change. Shareholder expectations will fall, so dissenting shareholders the right to withdraw. "When the largest shareholder of malicious oppression of minority shareholders, or other abnormal situation occurs's impasse, the company management resulted in serious difficulties in setting up the company's shareholders can not achieve the purpose, the new < <Law>> provides for judicial dissolution of the company's system, request the court to give minority shareholders the right to dissolution of the company, which is the company's "contractual relationship" theory of the proper meaning.

(B) the company's value system
The product as a market economy, the company is to promote the market economy system, the driving force behind progress. Because of this, some people think that the creation of the corporate system of socio-Economic development of the huge contribution, as much as the invention of the steam engine and Industrial Revolution. Marx <<Capital On>> also spoke highly of: "If you must wait to make some individual accumulation of capital growth to the extent that the construction of the railway, then I am afraid that until today the world has no railway, but the focus suddenly put it through the AG kinds of things done. "" modern corporate system that the company is to create profit body. is to maintain the interests of the body, but also to maintain balance in the interests of other stakeholders, including the interests of employees, the company the benefit of creditors, consumer the interests, the interests of small competitors, community interests, environmental interests and the public interest, so the company in achieving its own value, they should bear certain social responsibilities. when there's deadlock, the shareholders have been unfairly oppressed, the company was abuse or waste, deterioration of operating conditions of the company, resulting in socially responsible companies can not when the request for dissolution of the company's shareholders should be allowed to the company as a market economy cells, when the lesions, can not treat, can not survive in the market when the economy and society should be allowed to perish. setting up a company to determine the shareholders and dissolve the company's freedom, prosperity and development company be able to continue to encourage investment, the real intrinsic value to play a corporate system.

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