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No matter what reasons if a company is dissolute, there is always the liquidation for the purpose of finishing up all pending work, including collecting and disposing assets of the company and dividing remaining assets back to the shareholders of the company. However, with respect to relevant laws and regulations regarding the liquidation of the company, the writer has found that such laws and regulations does not prescribe some provisions that cause some problems, such as liquidator’s problems, the postponement of liquidation, placing of assets after the liquidation, the cancellation of registration of liquidation and the obligations of liquidators as specified in the Act of Prescriptions of Obligations of Registered Partnerships, Limited Partnerships, Limited Companies, Associations and Foundations B.E. 2499. In this regard, this thesis focuses on the research and analysis of such problems in order to approach to the development of law concerning the liquidation of a limited company. With regards to the liquidator’s problems, the writer has found that there is no law specifying the qualification of liquidators, although the liquidator is an expert and has skills so the law should prescribe the qualification. In addition, the liquidator is trusted by the shareholders of a company to work for the benefits of the company. Therefore, according to the fiduciary duties, the liquidator should work honestly but no conflict with the benefits of the company and the liquidator should work carefully. As a result, the fiduciary duties are necessary to be prescribed in the relevant law as the liquidator should really work for the benefits of the company. With regards to the postponement of liquidation, it may be resulted from no timing of liquidation for a liquidator. This matter should be also provided in relevant law in order for the liquidator to finish the liquidation within the specified period of time. Furthermore, in relation to the shareholders’ meetings if the shareholders presented at the meetings does not form the quorum that causes the postponement of the meetings and convening the new shareholders’ meeting according to Section 1179 and 1273 of the Civil and Commercial Code (the “CCC”) and if comparing with law in other countries, the writer has found that the provisions of the shareholders’ meetings are required in the relevant law. For example, if the quorum at the shareholders’ meeting to consider the liquidation cannot not be formed, the meeting can still proceed and the liquidator at the meeting must inform the registrar of the Ministry of Commerce of such quorum. In addition, in any event that required the approval of the shareholders’ meeting, if the shareholders’ meeting cannot be formed a quorum, the liquidator shall be granted or approved by the registrar of the Ministry of Commerce or the relevant court to liquidate without setting a subsequent shareholders’ meeting for its approval of the relevant matters. With respect to placing of the assets, if the assets have been placed according Section 1264 of the CCC for over 10 years and the creditors of the company have not requested for such assets within such 10 years, the creditors shall have no further right to the assets that have been placed according Section 339 of the CCC and the company shall have no right to take such assets back as the assets of the company since the company is no longer a juristic person after its registration of liquidation. In this regard, the writer recommends adding the statement that “the assets that have been placed shall devolve on the state.” Additionally, in case that the company has already registered the liquidation but the payment to the creditors of the company has not been made. The writer views that such creditors should still have the right to claim for the payment according to the liquidation even if it lasts longer than 2 years according to Section 1272 of the CCC and the creditors shall have the rights to cancel the registration of the liquidation and the appointment of the liquidator according Section 1251 of the CCC, and to request the relevant court for specifying the list of acts of a liquidator. The final issue that the relevant law should be amended is to specify the obligations of liquidators in the Act of Prescriptions of Obligations of Registered Partnerships, Limited Partnerships, Limited Companies, Associations and Foundations B.E. 2499. As the writer has suggested the provision in relation to fiduciary duties of liquidators, the provision in relation to obligations of liquidators shall be also specified for its consistency. |
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