The System Of Disregard Of Corporate Personality In China

The establishment of the corporation system has pushed the economic rapid development. Its functions in economy and law and the actions in realistic living have promoted large number of corporation emergence. Of all the legal systems that prop up modern market economy, the corporate personality system is a mainstay doubtlessly, and the three major pillars of the corporation system, the property of the corporation separated from the shareholders' property, a independent personality the corporation having, and the undertaking limited liability for the shareholder, which have vigorously promoted all the business transactions to carry through efficiently and the property right to increase its value in flowing. Especially as the two foundation stones of the corporate personality system, the independence of corporate personality and the principle, of shareholders' limited liability take a "double blade sword" function in corporation law. When people are efficiently pursuing economy value, at the same time, in the course of property right flowing, some ethic values like equity and justice are being neglected in different degree.While emphasizing the limited protection of the shareholders, traditional corporation law overlooks the protection of the creditors, with dominant shareholders holding the board of directors, thus the directors have opportunities to abuse the corporate personality. Phenomena such as evading contractual and legal obligation appear immediately, especially in imperfect market economy countries or regions, such phenomena are most, because the desire of pursuing capital accumulation is strong, and the market business rules not perfect, the market credit is highly scarce, all of which promote the enterprise entities risk dangers when in a desperate station, and abuse the corporate personality, every moment there exists a variation motivation in the corporate personality. In order to avoid of chaos by abusing the corporate personality, and to protect the benefits of corporation creditors and small shareholders, and in honor of the public interests, and to ensure the business carry through smoothly, on the condition that the corporation is not being cancelled, and for the sake of revealing the law actuality under the corporation, the court will throw aside the independence of corporate personality, require the shareholder behind the curtain of the corporation bear the direct burden to the creditors, this doctrine called as "disregard of the corporative personality ". While in Anglo-American law, it named as " uncover the corporation veil" or "lifting the veil of corporation", still incontinental laws, it calls as "Durchgriff' obligation, three phrases in this text are synonymies.Under normal conditions, the corporative property is independent, and the liability is independent, further more the property independence is a premise and basis of the liability property. By virtue of the layer of" veil", the shareholder can be avoided of being charged by creditors. But for the sake of preventing the shareholder evade legal or contractual duty in abusing the corporation form, when a corporation is being under capitalized or the shareholders take illicit or excessive controlling method, It is necessary to " uncover the veil of the corporation", and to charge the shareholder directly, but it is unnecessary cause the corporation bankrupt. The bankruptcy of a corporation is the end of the corporative personality, while the method called disregarding of the corporation personality is no mean by taking no cognizance of the independence of the shareholder, and the corporation under a certain case to uncover the corporation veil temporarily, and to let the shareholders behind the curtain come to the stage to bear the burden of discharging the related obligation directly, when the case is finished, after a reconstructing, the corporation personality is saved. Thus it not only guarantees bargain, but also lowered the social cost, so it is a kind of measure to resort power to relief power, to rectify the equity and justice which is unbalanced, and is also accorded to "Pareto improvement" system arrangement.Towards every kind of behavior dominant shareholder performed, a series of tests should be taken when the corporation veil is uncovered. Generally speaking, it is applied to the occasions when a corporation is seriously under capitalized, and the shareholder abuses the corporate personality, or evades legal and contractual duty. When taking the legal theory into account, three entity elements and certain procedure items are absolutely necessarily, and it mostly suits to analyze corporate personality modalities, such as one person companies, parent-subsidiary corporations, brother-sister corporations and even to multinational corporations, in all occasions, it functions very well in protecting the benefits of contractual creditors or tort claimant, and in special protection of the employee, or in protecting the social public interests in other fields ,such as tax law, competition law, environment law and so forth.The person who is entitled to litigate is the one whose benefit is trampled, not comprise of the third part irrelevant. The defendant can be the single shareholder, or the corporation and its shareholder being accused together, still it may be that thecorporation is accused first, the shareholder listed as the third people, finally annexed as defendant as well. When using the doctrine, whether in an entity law or the procedure law, equity and justice should be the highest value conception, as to the onus probandi, it should adopt convert principles.As an important innovation of corporative personality system, the system of disregard of the corporate personality and the corporative personality system are two poles, which are interaction and lean each other, it will play an important xole to redress the equity and justice. Nowadays the developed countries adopt the doctrine in succession, and it forms a systemic theories. In our country, though there is dispute in theory field, most scholars think that it's necessary to introduce the theory into our country. From the judicatory practice in our country, in recent years, cases of uncovering a corporation veil ascend gradually, especially in post-WTO period, in order to fulfill the law of corporation in our country, in order to guarantee business security, it's necessary and possible to introduce the system into our country, The 16lh CCPCC report has point out the directions for our legal system innovation, and also it is a guide to connect our commercial law with international commercial law. When establishing our disregarding of corporate personality system, we should pay more attention to design a whole set of related laws and statutes, we may accumulate experiences through judicial cases, when conditions are mature, we may complement them into statute laws, these methods accord with the principle of the path dependent of institution innovation. Concerning the fact that the whole level of judicial operators in economy and law in our country are not high, though it's necessary to endow the judge a certain rights of free judge, when testing a concrete case, a judiciary should adopt cautious principles, he can't abuse the doctrine of disregarding of the corporative personality, lest leading to a new injustice. On the way of exploring the theory of disregarding of the corporate personality, we just start, so it's necessary for the theory study scholars and practicers joint efforts, which is a subject needing deep study.