Civil protection of company property from the conduct of directors in insolvent liquidation in Scotland
This thesis is an attempt to trace the aspects of civil protection of company property from the conduct of directors in insolvent liquidation in Scotland. It emphasises the origin of the problem and the essential need to protect company property, particularly in public limited companies. This protection is required for two reasons. First, directors may abuse their powers and take advantage of the privilege of limited liability they enjoy. Second, the separation between ownership and control. There are several aspects of civil protection which are provided by the Insolvency Act 1986, the Company Directors Disqualification Act 1986 and the common law. Regarding civil protection after the commencement of an insolvent liquidation, the Insolvency Act protects company property: (1) by terminating all of the directors' powers in a creditors voluntary liquidation (s.103); (2) by avoiding dispositions of company property after the commencement of liquidation in a compulsory liquidation (s.127); (3) by making public and private examinations to investigate directors' conduct in their dealings with the company (ss. 133, 236 and 112); (4) by prohibiting directors from re-using the company's name (ss. 216-217) and (5) by disqualifying directors who are ordered by the court to contribute to the company's assets as a result of fraudulent and wrongful trading (s. 10 of the C.D.D.A. 1986) and those directors whose conduct makes them unfit to be concerned in the management of the company (s. 6 of the C.D.D.A. 1986). But to maximise this protection a provision should be added to provide that directors' powers should cease in a compulsory liquidation not only after the liquidation order but also after the appointment of a provisional liquidator except with the leave of the court. Section 127 should also extend to cover any disposition made after the making of a resolution to wind up the company voluntarily and before the appointment of the liquidator and after his appointment.