A Study of Liquidation—Focusing on Preservation of Assets and Effectiveness of Dissolution
| Autor: | Yi-Kai Chen, 陳羿愷 |
|---|---|
| Rok vydání: | 2019 |
| Druh dokumentu: | 學位論文 ; thesis |
| Popis: | 107 As a legal person, company has no life limitation, but it will terminate at certain moment. The termination of a company happens when shareholders get enough profit from their investment or endure too much lost to continue the business. Liquidation, or winding up, is the last stage before the end of company’s legal personality. The goal of the procedure is fair distribution of assets and clarification of company’s rights and liability. It is critical for shareholders, stakeholders and public interest to liquidate a company smoothly. But in practice, the liquidation procedures are not well implemented, tens of thousands of defunct companies with redundant legal personality are left on the market. One of the reasons causing the situation is the shortage of assets. Under current law, when the company face financial difficulty, directors tend to bet with all remaining assets, which should be distributed to creditors. If the directors failed, there will be no assets left for creditors. And the shortage of assets reduces the motivation of liquidators and shareholders to finish the procedure. Furthermore, the liquidation procedure in Taiwan is designed for solvency companies, so the dominant player of the liquidation are shareholders and directors. There are few protections of creditors in current procedure. Companies are exposed to the risk of assets loss before liquidation, and are forced to apply to a liquidation procedure which is inconsistent to practical situation. The non-implementation of liquidation in practice is not a surprise. This thesis reviewed Anglo-American law, mainly U.S. and U.K. law, on the concerning issues, and tried to figure out possible suggestions for a better procedure for Taiwanese companies. Before the liquidation, fiduciary duty, which was introduced into Taiwanese law in 2001, might play an important role. In Anglo-American law, directors are required to put creditors’ interest into primary position and preserve the assets when the company are in danger of being insolvent. But there are comparatively few discussions about this issue in Taiwan, the importance of fiduciary duty might be underestimated. And this thesis proposed to turn the liquidation into a procedure which is principally for insolvent company and led by creditors. Liquidation in U.K. might be taken as reference for Taiwan to build a procedure which conforms to real situation. Furthermore, liquidators are the most important role in the procedure, but the current statutory liquidator regime has its risks outweigh the benefits. Therefore, this thesis proposed to take U.K. insolvency practitioners framework as reference to improve the integrity, independence and profession of Taiwanese liquidators. |
| Databáze: | Networked Digital Library of Theses & Dissertations |
| Externí odkaz: |
|