兩岸公司清算制度之比較研究

COMPARISON OF LIQUIDATION SYSTEMS BETWEEN TAIWANESE COMPANY AND CHINESE COMPANY

趙興偉(CHIN-WEI CHAO)

指導教授 ： 王志誠

國立中正大學/管理學院/會計資訊與法律數位學習碩士在職專班/碩士(2012年)

摘要

【摘要】
所謂完善的公司治理的機制，應包含公司最初的籌資設立、規劃營運以迄結束退場，均應建制公平的法制以供遵循，以強化公司治理並進而能提升國家整體競爭力。兩岸公司向來只著重於籌資、設立及經營面，對於公司面臨清算之退場機制，並未能給予相同之關切及實務運用。且公司在清算退場機制時，法律制度並未周延及完備，實務上見解亦紛岐。為能有更完善之退場機制，儼然已成為兩岸健全產業及發展經濟下之重要課題。早期國人大量赴大陸投資設廠，紛紛設立公司經營商業行為，面臨二十一世紀國際化及全球化之趨勢，難免經營不善，結束其營業，涉及大陸清算法律制度。
兩岸公司法對於公司最終結束法人人格生命所規定之清算制度，自公司法訂立迄今，均未重視及完善修正，我國公司法清算條文有79條，解散清算法律制度較大陸健全，而大陸公司法清算條文僅有11條，通篇以原則性規定為主，缺乏具體內容規定及違反責任之追究，完全以司法解釋即以最高人民法院關於適用公司法若干問題的規定（二）及最高人民法院關於審理公司強制清算案件工作座談會紀要等補充公司法清算制度規定之不足，實有違現代法治有關人民權利義務事項均屬「國會保留」、「法律保留」事項，須由法律或由法律授權訂之。
公司清算過程中，涉及法律爭議層面甚廣，實務上我國公司法對於選派清算人選任、公司清算後董事會及董事的定位、清算人解任塗銷公司變更登記表、清算人限制出境、主管機關與法院對於清算權限、清算完結、不實登記之撤銷等，見解仍有所紛歧。而大陸公司法對於清算組在訴訟中法律地位、未經清算公司註銷登記等見解亦不一。
兩岸公司經營不善，公司解散並無進行清算，或有清算之名而無清算之實，無法終結其法人人格，名存實亡，嚴重影響公司債權人及股東合法權益，造成社會經濟關係不確定，故研究兩岸公司清算制度比較同異，俾兩岸公司能藉由清算程式能儘速消滅其法人人格，使債權人及股東權益得以保障，有助於彼此瞭解兩岸公司清算制度，並喚起社會大眾重視此議題作為日後主管機關修法之參考。

關鍵字

清算組 ； 清算完結 ； 選派清算人 ； 清算人 ； 清算 ； 解散 ； 清算義務人

並列摘要

A perfect management mechanism of a corporation shall include preliminary fund raising and foundation, planning and operation as well as withdrawal and closure of business. In this regard, a fair legal system shall be set up for the purpose of observing, building up management of corporation and further upgrading integral competence of country. However, both Taiwanese and Chinese firms always laid stress on fund raising, foundation and running. When facing liquidation and withdrawal mechanism, the same attention and practice application have not been duly and fully taken into account. When a company is going into liquidation and facing withdrawal mechanism, the legal system is not so perfect and complete, and the viewpoints on practice are also divergent. Too seek better withdrawal mechanism would become an important subject in regard to sound development of industry and economy for both Taiwanese and Chinese firms. Many Taiwanese one after another went to China to set up factories and do business over there at the beginning. However, due to the tendency of globalization and internationalization in Century 21, some companies closed its business on account of poor management; as a result, Chinese legal rules and regulations relating to liquidation are greatly concerned in this connection.

The company laws of Taiwan and China have never made much account of the liquidation system with regard to the corporate personality and life for final closure of a corporation and have not been duly amended since the legislation of Company Laws. In Taiwanese Company Law, there are 79 articles relating to liquidation, so Taiwanese legal system for dissolution and liquidation are better than Chinese legal system. There are only 11 articles relating to liquidation in Chinese Company Law, which are chiefly composed of principle provisions. In absence of concrete requirements and prosecution for violation of duty, they only supplemented the imperfection of liquidation system in Company Law by means of judicial interpretations, i.e., (1) Stipulations of some questions in regard to the Corporation Law provided by the Supreme People’s Court and (2) Summary of workshop for trials of compulsory liquidation cases of the Supreme People’s Court. In fact, it has not complied with the principle that both rights and obligations of the people all are of “Parliament Reserve” and “Legal Reserve” in the modern legitimate society; as a result, such rights and obligations must be made by law or via legal authority.
In the process of liquidation, lots of legal issues and disputes must be addressed and clarified.. In practice, there are still different points of view with respect to appointment of liquidator, standing of board of directors and directors after liquidation, dismissal of liquidator, deletion of corporate change registration table, limit for exit of liquidator, liquidation responsibility of the authority-in-charge and the court, closure or completion of liquidation and cancellation of false registration as set forth in Taiwanese Company Law. On the other hand, in Chinese Company Law, the opinions for the legal standing of the liquidation group at lawsuit and the cancellation for registration of the unliquidated firms are also different.

Most of Taiwanese or Chinese companies that were dissolved due to poor management were not liquidated. Even though there was any liquidation action, such liquidation action was not really made; as a result, the corporate personality could not be terminated. It has not only affected the legal interest or equity of the creditors and stockholders of the company seriously, but also made the uncertainty for the social and economic relationship. The purpose of the research is to compare the liquidation systems of both Taiwanese and Chinese companies to enable the same to extinguish their corporate personality soonest possible by means of liquidation procedure and protect the legal interest or equity of creditors and stockholders. In addition to understanding of liquidation systems of both Taiwanese and Chinese companies it can also arouse the public to attach importance to this issue and can be used as the reference for future amendment of laws by the authority-in-charge.

並列關鍵字

Liquidation Group ； Completion of Liquidation ； Appointment of Liquidator ； Liquidator ； Liquidation ； Dissolution ； Liquidation Obligor.

參考文獻

38、彭運鵾、蔡嘉昇，＜限制新舊任清算人出境期間應合併計算不逾5年＞，理律法

37、彭運鵾、蔡嘉昇，＜公司破產程式終結前，稅捐機關不應對破產管理人或原負責

8、李鎂，＜清算中公司之法律上地位—最高法院79年臺上字第555號判決之商榷＞，

2009年3月版。

參考文獻