谈公司法人人格否认制度

【Abstract】wWw.shuoshilunwen.com Corporate is one of the most important form of commercial organization in China’s market economy, the basic characteristics of personal independence and limited liability. However, the corporate system is not perfect. In recent years, the personality characteristics of corporate activities in the real economy there he been various alienation, the abuse of corporate personality is emerging, mainly as false investment, capital flight, shelling operation, company and shareholders confused personality, the parent company of subsidiaries excessive manipulation, and malicious bankruptcy situation. In order to maintain fairness and justice in real terms, the corporate system can operate in accordance with benign intention of the legislator, the new system must be established on the legal personality to make additions and amendments to the system, which is discussed in this paper to deny the system of corporate personality. This article from the "xiyangyang" case start Personality deny the case, disregard of corporate personality in the system established theoretical basis and disregard of corporate personality abroad for a brief analysis of the system, based on the analysis of the specific application of the system and on this basis proposed in the judicial practice should be noted that several issues fundamental purpose is to want to correctly grasp the corporate system and corporate personality denial system, so the two combine to better promote the socialist market economy healthy development.This article is divided into six parts:Part I: "xiyangyang" legal case is a judicial practice of disregard disregard of corporate personality in the system for a real case. In that case, although the Court of First Instance, Court of second instance the same physical results, but it should be applied on disregard of corporate personality system, the attitude is different. The case shows that the judiciary in the application of the system is extremely cautious, but because of inconsistencies in understanding, in practice, will produce conflicting jurisprudence.Part II: Personality system start-up companies in the promotion of economic development has played an irreplaceable role. However, with extensive use of the system, resulting in all sorts of variations, seriously damaging the interests of creditors, undermine the economic order, contrary to justice. At this time need a new system to the system of legal personality to remedy this mutation, which is disregard of corporate personality system. The system is not a denial of the legal system, but rather a necessary complement to the legal system, and sublimation. The pursuit of social justice, protection of security of transactions, standardizing market economic order, they must deny the establishment of system of corporate personality.Part III: This section discusses the common law and civil law of the major countries (excluding China) the application of the system. The two legal systems very different legal traditions, making the specific application of the regime in different scale, but on the recognition of the system is the same, so you can provide to the judicial practice in China Experience.Part IV: China’s old "Company Law" does not expressly deny the system of corporate personality, so in practice the application of the system is extremely cautious. New "Company Law" provides for a disregard of corporate personality system, but reflect the principle, fuzzy, complementary quality to the judicial practice, a certain amount of problems. In judicial practice, special attention should be the following aspects: First, the main elements, the plaintiff should be the result of the abuse of corporate personality damage to creditors, not shareholders or the company’s own; the defendant should be the implementation of the misuse of company personality controlling shareholder of the positive behior, rather than those who do not as a passive shareholder or a director, manager. Second, the behior of elements in the objective, the defendant must implement the abuse of corporate personality and limited liability shareholders of behior, including use of corporate personality to oid contracts or legal obligations, as well as corporate personality Xinghai of behior. Third, the subjective element, the disregard of corporate personality in the appeal of the defendant should not be too much emphasis on the subjective element. Fourth, the consequences of harmful elements, the defendant’s acts of abuse of corporate personality to the plaintiff must meet the severity of damage and the disregard of corporate personality in order for the system.Part V: The specific application of the system should pay particular attention to several issues: First, one of the system in time for the implementation of the burden of proof, that the shareholders shall be shareholders of the company’s property, the property independent of the burden of proof. Second, the filing should be strictly in the filing; in the application procedures should be strictly limited within the legal proceedings should not be extended to other procedures, such as the implementation procedures, administrative processes and procedures for commercial arbitration.