The Civil Procedural Regulations Of The System Of Disregard Of The Corporate Personality

The essence of modern corporate system is reflected in the independent personality and the limited liability of shareholders, as two major cornerstones of the Companies Act, the innate "moral risk factors" may led shareholders to abuse of them and violate the benefits of company creditors, evade responsibility. Disregard of the Corporate Personality is a legal measure to inhibit this kind of situation. The new "Company Law" amended on October 27, 2005 and implemented on January 1, 2006 establishes the system of Disregard of the Corporate Personality. To the scholars of company law, it folds up the controversy on the Advantages and disadvantages of it and on whether we need to establish it or not. but to the scholars of civil procedure law, it brings us a challenge to deal with how the system really implement in the judicial practice, because there are only two provisions to rule it in the "Company Law" of our country, and the procedures how to apply it in the judicial practice were not mentioned, therefore it became an urgent issue.This article dedicates to analyze in a cross-perspective of substantive law and procedural law, and focuses on not only the law as it is but also the law as it ought to be. The substantial provisions about the system of Disregard of the Corporate Personality in the "Company Law" of our country which established not so long are analyzed from the perspective of Civil Procedure law; thereby the urgency of the research and establishment of procedural rule is reveal. Combined with the general theory of procedural law and the substantial characteristics of the system of Disregard of the Corporate Personality ,this article analyzes several procedural problems, the analysis is not entirely an innovation, it also reflects the advanced idea of the existing laws, and of a series of judicial interpretations of The Supreme People's Court specially. However, the methodology of this article' is not fully hermeneutic, the pursuit of truth is also reflected in the article between the lines.This article includes five parts. In the first part, three main features which include the generalization in substantial legislative, the essence as a judicial relief measure, and the dependence are revealed in a perspective of procedural law through the commentary of the provisions of Disregard of the Corporate Personality in the "Company Law" of our country. And thus it is demonstrated that the procedural rules of Disregard of the Corporate Personality were unique. So the academic should pay attention to it. The subject of the second part is research on the problem of qualified parties, it is believed that the qualified plaintiffs are "creditors" ruled in the "Company Law" and its scope should not be limited further, but the companies and shareholders have no right of appeal. The qualified defendants include the companies and shareholders. How to explain the corporate whose personality was disregarded has a personality to be a defendant. It is believed in this article that the disregard of the personality is confined in the field of substantial law rather than procedural law. Furthermore taking part in the proceedings of the companies is an inevitable requirement of procedural justice.The third part was about the category of joinder, which is research on the relationship between companies and shareholders. Through the research and comparison of four theories on the relationship of the jointer debtor in the civil proceedings, the theory of granted necessary joinder which is promoted by Nakamura is considered more reasonable, and also more suitable for the action of Disregard of the Corporate Personality.The subject of the fourth part is study on proof in disregard of corporate personality. Object of proof, burden of proof and standard of proof were analyzed specifically. The objects of proof in the action include the behavior, the subjective, the results and the causal relationship. The plaintiff should bear the burden of proof except the reversion of the burden of proof which is regulated in the 64th provision of Company Law. However a lower standard of proof should be set as a measure to compensate for the deficiencies.The fifth part discusses several relevant judicial systems. The level of jurisdiction should be raised and the first instance of this kind of action should be in charged by the Intermediate People's Court. Case Guidance System which adapts to china should be set up.