Research On The Disregard Of One-man Corporate Personality

The appearance of one-person company is the choice of the history, and it is necessary for the economic development. One-person company is the investor's favourite with the less investment and the lower cost of capital. However, it has the limitation which is unavoidable. The investor of one-person company acts as simultaneously stockholder, director and manager, and the administration system doesn't realize the division of labour and the check and balance of the right, and it is convenient for the stockholder of one-person company to abuse independent personality. Under the circumstance, the company Act will disregard the independent personality in order to protect the interest of the creditor and society. Thus the institution of the disregard of one-person company come into being.Concerning the institution of the disregard of one-person company's personality, it is the main base to definite the scope of one-person company. In substantive meaning, one-person company features not only one stockholder, but also features several stockholders which managing the company by one stockholder, that is substantive one-person company. In fact, as the product of eluding the law, one-person company exists for a long time. In order to solve the problem above, the formal one-person company is endued with legal status by the Company Act issued newly, and it allows the investors to set up one-person company, and all these accompany with the severe institution. The most investors which try to invest one-person company give up, because of the severe capital demand, severe supervision mechanism of finance, and the conversion of the onus probandi, so they will select the limited liability company to elude the law. So issuing the law of one-person company doesn't affect on solving the realistic problem, there is only more new form of the company for investor to choose, while whether to choose depends on the investor's understanding of the form of the company. Since enduing with the right directly hasn't effect, then regulating one-person company by law is the only choice, that is to extend the subject scale of the institution of the personality denying of one-person company, deducing applying relative legislation of the formal one-person company on the personality denying of the substantive one-person company, that is the conversion of the onus probandi,. Only affirming the formal one-person company and the substantive one-person company bear similar legal liability, applying unitedly the institution of the personality denying of the artificial person, we can solve the realistic questions of substantive one-person company.Before promulgating the new company law, the most scholars in our country study the institution of the personality denying of one-person company from the angle of jurisprudential applying, while with the regulating of the institution of the personality denying in the new company law, our studying direction should transit from jurisprudential applying to regulation applying.Firstly, concerning personality denying of one-person company, when applying the regulation, some scholars think that the relation between 20th clause and 64th clause is the common clause and special clause, that is to say, when the two clause competes, only apply the special clause. So the 64th is the legal base when denying one-person company's personality. We find that the understanding above is not accurate. Concerning the 64th clause, I think that it is the regulation of the distributing of onus probandi among the litigating subject. That is to say if the creditor litigate the personality denying of one-person company, and the court accept the case, the judge can deduce that the hotchpot in the one-person company , and the stockholder has to prove that there is no hotchpot in the company. Basing on the theory hypothesis, the thesis demonstrates that the relation between 20th clause and 64th clause isn't simply competetion, they construct together the legal regulation system applying to the institution of the personality denying of one-person company in our country. As the general principles, the 20th contains the conditions that start-up the litigation of the personality denying of one-person company, while the 64th supplies the distribution of onus probandi in the litigation of the personality denying of one-person company under the circumstance of the hotchpot. So the thesis think that two clause is the harmonious unification, and there is no exclusive relationship in applying the regulations.Secondly, the 20th clause in the new company law prescribes that only violating the creditor's interest through abusing the stockholder's independent personality, can the creditor present the plea of the disregard of one-person company's personality. Indubitably, the scope of applying the disregard of one-person company'personality is limited. Under the circumstance, if the stockholder violates the social and national welfare, the society and the nation don't present the plea of the disregard of one-man company's personality. The oversight in the legislation goes against the original intention of the institution of the disregard of one-man company's personality. Furthermore, the 20th clause in the new company law doesn't affect efficiently on protecting the creditor's interest. The 20th clause prescribes only the creditor's severe loss is made by abusing the independent personality of the company, can the creditor deny the independent personality of the company. Then, what is the severe loss, how to definite the severity? and if the creditor's common interest is violated by the stockholder, then do the creditor only keep silence? Obviously, all these don't accord with the act of tort of abusing and the principle of completely compensation.Finally, as the regulative system of applying to the one-person company, the 20th clause and 64th clause play a critical role in stipulating the abuse of independent personality, but the unperfect legislation abate the significant of the institution. So, the thesis put forward the suggestions: intentive expanded explaining to the 20th clause in the new company law through the judicatory explanation, the institution of the personality denying of one-person company in the future should consist of the conditions of the social and the national interest are violated by the stockholder's abusing the company's independent personality. At the same time, the creditor's loss ( severe loss or common loss) made by the stockholder, the creditor can present a plea of the disregard of one-person company's personality as long as the creditor can prove the existence of loss.