Legal basis: Regulations for the Implementation of Trademark Law
Article 47 If the registrant of a trademark dies or terminates, and 1 year has elapsed since the date of death or termination, and the registered trademark has not been transferred, anyone may apply to the Trademark Office for cancellation of the registered trademark. To apply for cancellation, evidence of the death or termination of the trademark registrant shall be submitted. At present, there is no clear legal or judicial explanation on how to deal with the property left over from liquidation after the cancellation of the company. The Shanghai Higher People's Court has issued relevant documents to the Shanghai Higher People's Court on printing and distributing "Answers to Several Issues on How to Deal with Property Rights and Interests after the Company is Cancelled according to Law".
(Hu Er [2006] No.6) The first and second intermediate people's courts, the third and fourth people's courts and the second people's court of all districts and counties:
At present, in the trial of civil and commercial disputes, there are differences in practice on how to deal with the property rights enjoyed by the original company after cancellation of registration. On the basis of investigation, the Second People's Court of the High Court formed a tendentious view on related issues. The Answers to Several Questions on How to Deal with the Property Rights and Interests after the Company is Cancelled according to Law are hereby printed and distributed to your hospital for your reference in civil and commercial trials. If you encounter new situations and problems in the application, please report them to the Second People's Court of the High Court in time.
According to the relevant provisions of the Company Law of People's Republic of China (PRC), after the dissolution of the company, the shareholders shall liquidate the company, and after the liquidation is completed and the cancellation of registration, the company shall be eliminated. Since the remaining property of the company after legal liquidation is distributed by shareholders according to law, it belongs to shareholders. Therefore, after the cancellation of the company, if shareholders find that the company still has creditor's rights or other property rights, they can file a lawsuit in their own name to claim their rights. 2. When shareholders claim the creditor's rights or property rights of the original company, should all shareholders take the plaintiff as * * * to file a lawsuit?
In view of the fact that shareholders claim the creditor's rights or property rights enjoyed by the original company, and the distribution of the remaining property of the company and shareholders belongs to different legal relations, unless all shareholders of the original company are willing to take the plaintiff as * * *, the court generally does not need to add all shareholders to take the plaintiff as * * *. If multiple shareholders file separate lawsuits on the same creditor's rights or property rights, the court may try them jointly. 3. After the cancellation of the company, a shareholder obtains the creditor's rights or property rights omitted in the liquidation of the company, and other shareholders file a lawsuit to request the distribution of the property rights. What should the court do?
After the cancellation of the company, the shareholders obtain the creditor's rights or property rights omitted in the liquidation of the company. The creditor's rights or property rights originally belonged to the company's property, which should be owned by all shareholders and distributed by shareholders in accordance with the company's articles of association or laws. Therefore, after the cancellation of the company, the shareholders obtain the creditor's rights or property rights omitted in the liquidation of the company, and other shareholders have the right to file a lawsuit to ask the shareholders who have obtained the property interests to distribute the property. 4. After the cancellation of the company, all debts have not been paid off to the creditors, and the shareholders have obtained the creditor's rights or property rights that were omitted during the liquidation of the company. Can the company's creditors ask the shareholders who have obtained the benefits to pay off their debts within the scope of the property benefits obtained?
According to the Company Law, the dissolution of a company should be liquidated. In the process of liquidation, if it is found that the company's assets are insufficient to pay off its debts, it shall apply to the court for bankruptcy according to law. Therefore, the liquidation of the company by shareholders themselves should be based on the completion of all debts of the company. Shareholders' voluntary liquidation of the company does not have the effect of debt relief. Therefore, if the company is cancelled without paying off the debts, and the shareholders obtain the creditor's rights or property rights of the company after the cancellation, the creditors have the right to ask the beneficial shareholders to pay off the debts of the company within the scope of the property interests obtained. 5. What should I do if the shareholders claim the company's external creditor's rights or property rights in their own names after canceling the company without legal liquidation?
According to the Company Law, shareholders' self-liquidation of the company does not have the function of exempting the company's debts. If a shareholder cancels the company without legal liquidation, causing losses to the interests of the company's creditors, he shall bear corresponding civil liabilities to the company's creditors. However, after the cancellation of the company, the property rights of the company belong to the shareholders, who can claim the creditor's rights or property rights of the original company. 6. What should I do if the company cancels its registration after the bankruptcy procedure and finds that the creditor's rights or other property rights are omitted in the bankruptcy liquidation procedure?
The company was declared bankrupt according to law, and after bankruptcy liquidation and distribution, the debts that the company could not pay off were no longer paid off. Therefore, bankruptcy liquidation has the effect of exempting the debts of bankrupt enterprises. After the bankruptcy proceedings, if it is found that the company still enjoys creditor's rights or other property rights and interests, the rights and interests shall be used to pay off all creditors first. Before the payment is completed, the shareholders or higher authorities of the company declared bankrupt do not enjoy property rights and interests.
At that time, if the bankruptcy liquidation group retained with the permission of the court has not been revoked, the liquidation group may claim creditor's rights or related property rights. After the judgment of the court, the acquired property can be kept by additional distribution or designated relevant units or personnel.
If the bankruptcy liquidation group is revoked, the shareholders of the original company or the superior department in charge of the company may apply to the court hearing the bankruptcy case to re-establish the liquidation group according to law, and claim the creditor's rights or property rights of the original company in the name of the liquidation group. Whether it is allowed or not is decided by the court.