China: 新形势下应如何认定有限责任公司的清算义务人及其责任

Last Updated: 10 September 2019
Article by Sha Meng, Deng Weifang and Kaiwen Zhong
Most Read Contributor in China, November 2019

新形势下应如何认定有限责任公司的清算义务人及其责任 ——2019全国法院民商事审判工作会议纪要研究系列

关于有限责任公司清算义务人的法律责任,在《公司法》第一百八十三条及《最高人民法院关于适用<&#20013;华人民共和国公司法>若干问题的规定(二)》("《公司法解释二》")的第十八条、第十九条、第二十条、第二十一条实则都已经有较为明确的条文规定,比如《公司法解释二》第十八条第二款即规定了公司股东作为清算义务人的清算清偿责任,即在公司无法进行清算的情况下,怠于履行清算义务的股东应当对公司债务承担连带清偿责任。但基于各地对于何为"怠于履行清算义务"的认知并不一致,在一些审判实践中存在不适当地扩大了股东责任的清算责任。

最高人民法院于2019年8月6日公开发布的《全国法院民商事审判工作会议会议纪要(征求意见稿)》(以下简称"《九民纪要(稿)》")对此问题的审判经验进行了归纳总结,并就实践中争议较大的怠于履行清算义务的认定、因果关系抗辩、诉讼时效等三个问题分别作出了回应,以此进一步阐明了有限责任公司股东的清算责任,对于集团化运作的公司而言,此纪要的上述观点无疑是一个有利的信号。

一、有限责任公司的清算义务应由谁来承担?

根据《民法总则》第七十条第二款的规定,"法人的董事、理事等执行机构或者决策机构的成员为清算义务人。法律、行政法规另有规定的,依照其规定"。然而《公司法》第一百八十三条规定:"......有限责任公司的清算组由股东组成,股份有限公司的清算组由董事或者股东大会确定的人员组成。......"以及《最高人民法院关于适用〈中华人民共和国公司法〉若干问题的规定(二)》("《公司法解释二》")第十八条第二款规定:"有限责任公司的股东、股份有限公司的董事和控股股东因怠于履行义务,导致公司主要财产、账册、重要文件等灭失,无法进行清算,债权人主张其对公司债务承担连带清偿责任的,人民法院应依法予以支持。"

从上述规定中可以看出,《民法总则》与《公司法》、《公司法解释二》中关于有限责任公司清算义务人的范围并不一致。《民法总则》第七十条第二款是关于法人清算义务人的一般规定,清算义务人包括法人的董事、理事等执行机构或决策机构的成员,而《公司法》及《公司法解释二》就有限责任公司的清算义务人单独做出规定,将有限责任公司的清算义务人的范围设定为全体股东,并未将有限公司的董事、理事包含其中。

关于这一冲突,理论界存在较大争议,有学者认为应根据新法优于旧法的原则适用《民法总则》,也有学者认为应当根据特别法优于一般法的原则适用《公司法》及《公司法解释二》。在司法实践中,通用的做法是将《公司法》及《公司法解释二》视为《民法总则》第七十条第二款中的"法律、行政法规另有规定的,依照其规定",从而将全体股东作为有限责任公司的清算义务人。例如,在(2018)京01民终1171号案中,城建公司主张其并非清算义务人,应按《中华人民共和国中外合资经营企业法实施条例》、《中华人民共和国民法总则》的相关规定确定德信公司董事等为清算义务人。对此法院认为,"德信公司为城建公司与华厦公司共同出资设立的合营企业,......。《中华人民共和国民法总则》第七十条第二款规定,'法人的董事、理事等执行机构或者决策机构的成员为清算义务人。法律、行政法规另有规定的,依照其规定',该规定是对所有法人的清算义务人的一般规定,亦指明对于特定类型法人的清算义务人,允许法律、行政法规另行规定。对于有限责任公司来说,《最高人民法院关于适用〈中华人民共和国公司法〉若干问题的规定(二)》第十八条的规定属特殊规定,应据以认定有限责任公司的清算义务人。综上,法院对城建公司的该项上诉意见不予支持。"

因此,虽然理论界关于有限责任公司清算义务人的范围存较大争议,但是从司法实践来看,将股东作为有限责任公司的清算义务人的裁判思路被普遍适用,并据此要求股东按照《公司法解释二》的规定承担清算责任;然而,值得思考的是,在《公司法》及相关司法解释已有规定的情况下,《民法总则》却仍然作出了与前者不一致的规定,这是否代表着法律观点的演变?由于篇幅所限,此文就此问题就不再展开了。

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