On The Company The Independent Personality Of The Corporate

The principles of the independent personality of the corporate and the limited liability of the stockholders in corporation law inspire the investment enthusiasm of the investors greatly and contribute a lot to economic development, but they increase the risks of the creditors undoubtly,because some shareholders would do harm to the interests of the corporations and the creditors by abusing the rights of the independent personality .In order to protect the interests of the creditors,many countries introduce the principle of legal personality negation system into their company laws . And it is a very important adjustment to the principle of the independent personality of corporation and the limited liability of stockholders. By this, the rights between the corporation and the stockholders and the risks between the stockholders and the creditors are balanced.In 2005 China Company Law was amended. Its Article 20 provides that,"Those shareholders who take advantage of the company's independent status or the limited liability of shareholders to disregard debts and seriously injures the interests of the company's creditors, shall be jointly and severally liable for the debts of the company". It is a major progress of the company law of China. However,this provision is so ambiguous that two kinds of improper application emerged in practice. In order to get a proper application of this provision,judges should be positive and prudent. A tendency is frequently applicable disregard, makes this should be the case applicable system into a universally applicable system, this should be added to the legal status presumptuous guest usurps the host's role. This tendency of development will shake the company law and damage shareholders legislative foundation, finally affect investment enthusiasm the healthy development of the whole economy operation. Another tendency is to company of disregard of applicable cautious, even in order to avoid mistakes and will apply disregard on the shelf, can't effectively shareholder in the shade under limited liability veil wanton harm the obligee's interests behavior, to interests of creditors can't get effective protection, influence disregard of applicable value. Therefore, how to correct and effective disregard for legal person becomes a serious consideration and face urgently judicature practice problems. The author thinks that applicable disregard should "positive prudent" attitude. Namely, on the one hand, to deliberate governed by this system, not let system is distorted expansion; On the other hand also cannot too cautious, as long as there is a legal person of abusing independent personality, we should fully grasp the legal and rules, and actively governed by this system, causes the disregard for medium eventually reach such an effect: corporate personality by implementing abuse of responsibility for his actions abusive behavior of shareholders to interests of creditors, damaged directly responsible to fix the independent company personality and the implementation of the shareholder's limited liabilities, and correct flaws because the shareholder abuse of power behavior and unbalanced between shareholders and creditors, and then the benefit balance relationship between corporate structures, the perfect company revised legal person system.This article first explores the connotation, the essence and characteristics of the rule of Disregard of Corporate Personality. Then its legal value and practical significance are analyzed. Meanwhile,the author reviews the related provisions in continental law system and Anglo-American law. We should establish the principle of "positive and prudent" to avoid the right of stockholders may be abused. Finally,the author thinks that we should grasp the constitutions strictly and regulate the independent personality of the corporate from the two aspects of the substantive or procedural.In short,the independent personality of the corporate does not only deny the limited liability of the stockholders and the dependent personality of the corporate completely, but also enrich and repair the loophole of the dependent personality of the corporate,and balances the inherent contradiction to a certain extent. However, the ultimate method to prevent the improper use of the independent personality of the corporate is to repair the loophole of law and improve the personality of the corporate, and perfect the company law so that the effect of the independent personality of the corporate could be terminated.