The Present Situation Of Disregard Of Corporate Personality In China And The Consummation Of Implementation Mechanism

Corporate personality and limited liability are the corner stones of company law.However,driven by profits and personal interests, shareholders may abuse their rights in name of the company,i.e.under the veil of corporate personality,to limit their liability within the amount of their investment.This,obviously breaks the rule of limited liability set up by the company law,and leaves the spirit of equality and justice behind. Therefore,corresponding provisions with respect to corporate personality, namely 'disregard of corporate personality' has been made out to control the behaviours of shareholders.'Disregard of corporate personality' happens when shareholders abuse corporate personality and limited liability to avoid their responsibility to the contract and other legal duties, which has caused loss to creditors or public interests;in these particular cases,corporate personality and separate liabilities of shareholders will be denied,thus related shareholders should take the responsibility directly for the debts.It considers corporate personality in the first place,while denies it as a legal remedy under certain circumstances.'Disregard of corporate personality' has originated from Western countries.Related foreign theories and cases illuminated and improved the legislation of company law in China.In the US,it is called 'lifting the veil of corporate personality';in Britain,it is named 'piercing the veil of corporate personality',and in Germany,it is called 'durchgriff',and it carries different names in Japan.Generally speaking,it is set up and applied in the form of case law,but in all of the countries,it is the strictest of 'Durchgriff' in Germany.After the literature review of the conceptions,characteristics and histories of 'disregard of corporate personality' in different countries,this article has described its development and current situation in our country. Related researches on corporate personality has started in 1980's,and institutionalized in 2005 in the company law.Comparing before and after the company law,the difficultis which judge are faced with change a lot. Before,the most difficult things is how judge the cases according to the spirit of the civil law,and after it,the most is how to quote the regulations. But until today,the successful court verdict is very few.The cause is that the innovation is lack in researching the theory and the theory is not ripe.Investigates its reason,our country innovates the insufficiency in this fundamental research,unified our country actual theory still not to be mature;In the legislation stipulated too the principle,not easy to operate, lacks the correlation procedure legislation necessary measure;In reality umpire personnel quality is limited,to this theory had not achieved handles skillfully degree.These present situations become suspend at our country legal science front topic,must solve urgently.The author has analysed the application of 'disregard of corporate personality' from the angles of history,sociology,economics and law.In terms of history,the emergence of companies in China has characterized with westernization and colonization.Related theories in company law has been brought in from foreign countries,with little innovation.With a view to its development,from 1992 till now,there is less than 10 years,thus compared with its 'hundred-year' development and application in the US, the problematic enforcement in China is understandable and corresponding legislation has still a long way to go.Besides,from the angle of sociology, the author has investigated 120 people,and drawn the conclusion as follows:people from law-related occupations have a high degree of understanding and acceptance of the theory,while questioning its feasibility at the same time;people from other occupations,think it too complicated to understand,therefore show little interest in it;and shareholders are very sensitive to this rule with respect to its influence on the running of company, however,they are lack of knowledge about its concrete application and its legal meaning.Therefore,the general awareness of 'disregard of corporate personality' in China is low,and propaganda must follow up.In addtion, from the angle of economics,in terms of capital theory,the 'abuse' behaviour of shareholders is resulted from misunderstanding of the relationship of 'input and outcome',who unrealistically try to pursue low capital and high production.In terms of risk theory,shareholders intend to transfer the risk to creditors,while the law will take it back to them through remedy liabilility.From efficiency theoretical analysis,although the efficiency first is the commercial law basic principle,but the legal protection is the company and the shareholder to its reasonable efficiency pursue,but should give the denial regarding the harm fair constantly pursue efficiency behavior,this is the law of corporation personality denial theory existence reason.In view of our country 'disregard of the corporate personality' present situation,we need to study formulate a set of complete legal framework,guarantees this system function the normal integrity display.In the existing system stipulated is insufficient in the situation,the author proposed should from the consummation entity legal rule content,the construction necessary procedural law safeguard two aspects to work hard. The first,at maintains 'Law of corporation' the stability and in the authority foundation,through the judicial interpretation way,'disregard of the corporate personality'main body defined in shareholder and its violation creditor two kinds who abuses the company personality,is not suitable expands willfully.The behavior important document will be supposed to adopt enumerates the way to be suitable the law of corporation personality denial system the situation to give the refinement,like confuses,abuses the company personality implementation not improper behavior,the company human body and so on,and stipulates by the sense of principle reveals,as far as possible exhaustive.The important document of the result should abuse the behavior to create the actual harm to the creditor,also between the behavior and the harm has the suitable causal relation is a standard.Two, through the consummation procedure legislation form,determined to the law of corporation personality denial system suitable litigant that,the jurisdiction determination,presents evidence the responsibility assignment, questions and so on decision execution 11 is clear about,causes the umpire personnel to be suitable this system accurately.