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公司乃商法上的自治组织,清算是股东的法定义务,公司清算应该是股东自觉的行为。但是,由于立法规定不完善,制度安排不合理,股东自觉履行清算义务只是人们的美好愿望而已。法律制度设计应当鼓励、引导股东自觉清算,要让不履行清算义务的股东承担非常不利的法律后果,要让股东将自觉清算变成主动选择的一种理性行为。自觉清算的股东受公司独立人格和有限责任保护,而在法定清算期限内未履行清算义务的股东则适用公司人格否认制度让股东直接对债权人承担连带清偿责任。司法介入公司清算只应在特定的情形下发挥作用.公司立法应对司法介入清算的程序作出具体规定。
The company is an autonomous organization in commercial law. Liquidation is the legal obligation of the shareholders. The liquidation of the company should be the conscious behavior of the shareholders. However, due to imperfect legislative provisions and unreasonable institutional arrangements, it is only the good wishes of the people that shareholders fulfill their obligations of liquidation consciously. The legal system should be designed to encourage and guide shareholders to consciously liquidate, to allow shareholders who fail to perform their liquidation obligations to bear very unfavorable legal consequences, and to allow shareholders to voluntarily liquidate into rational choices of behavior. Shareholders who conscientiously liquidate themselves are protected by the company’s independent personality and limited liability. Shareholders who fail to perform their liquidation obligations within the statutory liquidation period will apply the system of disregard of corporate personality to allow shareholders to assume the joint and several liability directly for creditors. Judicial intervention in the company liquidation should only play a role in a specific situation.Company’s legislation should make specific provisions for judicial intervention in the liquidation process.