النظام القانوني لإنقضاء الشركات التجارية

Abstract

The end of the company means the dissolution of the legal bond existing between its shareholders. Due to the effects this has on the shareholders and the third parties, the dissolution of commercial companies goes into two stages. In the first stage, the reason of the end of its commercial life is realized. In the second stage, the company’s assets and property are distributed. The company may be dissolved for many reasons ranging between legal and administrative reasons and judicial ones. The legal reasons or the dissolution of the company as of right happens when the duration fixed in its articles of association expires. A company is also dissolved when there is no more any reason for its business to continue. It is also dissolved when its capital is dropped in wholly or partly. This dropping in is not necessarily material; it can also be a moral one as when the company is deprived from the permit allowing it to accomplish its work. The company is legally dissolved as well when there is a lack of plurality as regards the shareholders as when one of them dies, is deprived of his legal rights, is bankrupt or unable to pay his debts, or when all shares of the company are in the hand of just one shareholder. The company is also dissolved if the shareholders decide so. It is reasonable to give them this right as far as they initially set it up. This decision is either taken unanimously or with the withdrawal of one of the shareholders. The shareholders have the right to preserve the capital of the company and integrate it in another one. Finally, the company is dissolved if a judgment ordering its dissolution is issued from a court because of a given shareholder not fulfilling his commitments, or a suit filed by one of them, or a loss caused to the company. The Algerian legislator does not take account of the real bankruptcy, but the judicial one only. Once the reasons for the dissolution of a company are fulfilled and all procedures of the publication of this dissolution are accomplished, the company enters the stage of liquidation, which consists of a set of operations aiming at putting an end to the ongoing company’s business, paying its debts, obtaining its rights, transforming its property into cash. This liquidation is either voluntary organized by the shareholders, or judiciary organized by the court. What is certain is that the company under liquidation preserves its moral entity which requires that it preserves its legal and financial capacity.We cannot talk about liquidation without talking about the liquidator who is endowed by the law with the entire authority to undertake this process. He is the company’s legal representative in dealing with shareholders or third parties. However, he also falls under major civil and penal responsibilities. After ending up all procedures of partition consisting of approving accounts, depositing the company’s registers, and striking it off from the registrar, the company proceeds to the division of its remaining assets between its shareholders. This division may be consensual agreed upon by all shareholders, or judiciary decided upon by the court in case there is a disagreement between shareholders. The aim of this division is to allow every shareholder to return one’s share in the company’s capital in proportion to his individual initial contribution. The end of the operations of divisions represents the real end of the company’s moral entity and the dissolution of the legal bond linking the shareholders together. The Algerian legislator and the majority of Arab and European legislators provide a given protection for the shareholders by taking an exceptional allowance to fix the time allotted for the prescription of legal actions undertaken by third parties by five years.