On The System Of Piercing The Corporate Veil

This text with lately-revised company law promulgation for chance,with this company law of the company independence personality and theshareholder limited liability system of two greatest sill for study background,the rise which thinks lifting the veil of the corporation system is because thecompany legal person system establishment of the investor and creditorbenefits balance of the structure and form be abused the companyindependence personality by the shareholder of behavior break, but in themeantime shareholder limited liability again abused a company personality toprovide an opportunity for the shareholder, become the tool that its rulesdodges creditor. This also makes the company creditor and social publicbenefits be subjected to damage at the time of making the equity, justice ideaof society distort. However traditional contract law, tort law again can'tprotect the creditor benefits effectively, therefore, lifting the veil of thecorporation system appeared.In the investigation of the system's meaning, the article thinks thepurpose of lifting the veil of the corporation system is to ask theresponsibility of shareholder, but lifting the veil of the corporation system tobe just the logic which denies shareholder limited liability result. Companywhether can undertake a responsibility is seen the end standard of thecompany which has the legal person qualifications independently. It isbecause the company can undertake an independent responsibility, so thecreditor can not ask the shareholders to undertake the responsibility. So torequest shareholder to undertake a responsibility, we have to deny theindependent personality of company first. But the lifting the veil of thecorporation system is not a scientific place indeed, calling it uncover acompany a veil is more suitable. However, should lift a method to understanddirectly, have already been understood by the most people, so, might as wellcall it as the company law everyone space to deny, namely the in recognitionof company have the independent legal person qualifications as priorcondition;Giving a denial to the company independence personality in theindividual case according to the concrete fact in the particular law relation.So, the article pursues the responsibility that that system and minor faultscompany establish denial system, shareholder parties to living the relatedobligation of the litigation system, board director to breach the system ismutually distinct, thus explicit its content and postpone outside.In the meantime, in the rightness the company personality denial thesystem of the legal theory research, the article investigated that systemabroad of the law apply circumstance and theories foundation, inducing localscholar to apply important item to that system in the meantime of analysisand abroad judicial precedent and establishment method in of mainly applyscope. The article mainly makes use of logic to carry through to measurethese two greatest methods to learn analysis tool with value, providing firmtheories foundation of the lifting the veil of the corporation system. Thearticle thinks that fastening in British or American , court to the lifting theveil of the corporation system of the attitude apply combine inconformity,people can't according to the court to make more accurate estimate to thecourt attitude. But in Germany, Japanese, these national's lifting the veil ofthe corporation system applies a scope type to turn, looking for the legaltheory of written laws for it in the meantime basis, with strict that legaltheory apply of composing important item, thus for avoid the abuseestablishment unify of apply standard. For the theories foundation of liftingthe veil of the corporation system, the article thinks, in view of the techniqueof law personality, lifting the veil of the corporation system is legal personand satisfy what condition can become the top of the very great degree ofcompany is a kind of consideration of law policy, it the main purpose isnothing but engaged in various management activity for the convenientcompany. Positive company what personality have draw up to growindependent personality in addition to exterminating thoroughly, should alsoallow to temporarily deny under the particular condition .In the meantime, thelifting the veil of the corporation system is also to the legal person system isin concretely apply output iniquity righteousness of the judicial remediablemeasure of the situation. It allows by the abuse for oneself which correctspersonality to the company, on the foundation of the company realisticgeneral justice of the personality independence, in concretely are assigned inbenefits and burden reasonably in the law relation of the party concernedwith insure individual justice. In the end, the article commences from theequal method and the system both side of the civil case corpus, get thepersonality deny institutional methodology foundation with concrete systemsupport.Under this premise, the article is four-part cent analyzed a companypersonality to be abused further of reason, think information dissymmetryand morals risk are companies the personality deny system in order to rulesand regulations company the personality be abused of basic reason, but thecompany manage structural of perfect and can't replace a companypersonality a denial by the root of the after the event rules and regulationsmeans. Because the company manages structure to reflect in the mode of theallotment concerning company power and the arrangement which is just theidealization mode that a kind of company manages, at some aspects, it has nothe actual power structure of precision reflection company. If it is dividedinto the company small scaled to close the words of company, medium-sizedcommon company, large and public company according to the company scale,traditional idealization model may only to apply middle type thecompany .As to small scaled close company, its management is like go intopartnership similar, from shareholder directly part-time board director ormanager, ownership and management power actually and not separate. Butlifting the veil of the corporation system is morely apply closing company orcompany group. But can't therefore get a closing company also should lead togo into such as public company that sort manages structure strictly. Factexactly the opposite, in the rightness the tradition manage the structure modelintrospect, all countries all the consideration don't to the company of varioustype give up to add distinction ground an usage to unify regular way of doing.This also explains that manage system by perfect and existing company buteradicate completely a company personality isn't realistic. Therefore have tolead to go into other rules and regulations mechanisms, take care of muchtogether next, the behavior together abused to the company personalitycarries on law rules and regulations, supporting the benefits and law ofcreditor thus of fair, justice value. From here article get conclusion, under theexisting company system, the information dissymmetry is objective andexistent, and cause the exterior of cost from here, namely social cost, result inthe social welfare descend. To remove exterior have to exterior cost the innerpart turn, the leading of system of the company personality denial goes in tosatisfy this kind of need by luck. For the morals risk, the companypersonality denial system gives a creditor request to liquidate a company theright of the obligation by shareholder thing personal, physically is make thatpart of risks that creditor bear have already transferred shareholder body, stillface to undertake all risks when it be engaged in adventure behavior ofpossibility, so of encourage can make the shareholder be more carefully carryon producing management to overcome morals risk. It can provide full reasonfor the lawmaking necessity that the company personality deny for capitalmost definitely, company's reason curing the analytical same of structure andcontractual method and infringement method. Now that the company's reasoncure structure's stipulation mechanism of this kind of before the event andcan't arrive to eradicate completely a company personality to be abusedeffectively, since contractual method and infringement method exist blemishin protecting creditor benefits and all, denying the leading of system goes intoto the company personality so of necessity also do not can doubt.The article last part to our country after be subjected to the companypersonality denial the process of the system to carry on combing aclassification, think before pass administration laws, regulation andjudicatory explain deny to the company law everyone space institutional ofrules and regulations of blemish very obvious: For example the concretecontents of economy and law responsibility with undertaking a way all don'tdefinitely make to practice medium hard operation;Apply scope to leadsecondly narrow, is the situation that the shareholder exists a not appropriatecontrol to descend and can apply only, but other abuse company the situationof the personality can't then get law rules and regulations. The third, aim atbusiness enterprise legal person only drive the circumstance for cancel,ceasing operation, do not save business enterprise legal person continuoushour pursue to support the circumstance of responsibility include at inside. Asto our country new company law in that system exist of shortage carry onanalysis after, the writer put forward oneself give improvement and perfectsuggestion on the lawmaking to that system, think, adopting the mode thatenumerate type and generalize type combines together combine in companylaw explicit company personality denial system of apply scope more suitable,should list definitely by the form of method for in the fulfillment expressingof already very full company personality being abused of behavior, since canhave caution function to shareholder, again can the easy to judge operatesphysically. For express deficient situation temporary not to enumerate,adoption bottom the form of the item make abuse company the behavior ofthe personality presents to open a rules and regulations situation in thejudicatory the fulfillment, this since avoid a judge cutting an abuse ofmeasuring the power freely, and then can give it to certainly creative space,make two benefit by association together, construct together company lawwith lifting the veil of the corporation system of frame.