On The One - Person Company Shareholder's Limited Liability

A great light spot of the current "Company law" is the formalrecognition of one—man company, this has fully reflected it under thesocialist market economy system, Invest and manage the spirit of freedom inmarket subject. "Company law" has met individual investor's pursuit tolimited responsibility to the formal recognition of one—man company, havepromoted and invested magnifying, is favorable to the development andsetting-up of extensive trans-corporation of our country of the small andmedium-sized enterprises of scientific and technological content, help tostrengthen the structure to one—man company at the same time.Limited responsibility system, it is all right to trace back to the systemof" peculium" in the ancient Rome law initially, as one business priniciplesof establishment, Originate from one call" Commonda" form a partnership.The establishment of the limited responsibility system in the company law,make company's personality really move towards the independence, Canreduce investors' business risk greatly, thus stimulate investors' investmententhusiasm, Help to reduce supervision cost of the company and transactioncost, help to impel all with the separation dealing in, improve the efficiencyof management at the same time. The traditional company law theory thinks,the privilege that the company shareholder enjoys limited responsibility hasindependent legal persons dose as the prerequisite wit, this requiresestablishment and management of the company must be in accordance witha basic principle, i.e. the separation completely of company and shareholder,Not only require the separation of company's property and shareholder'sproperty but also require the company shareholder to give up the direct rightof disposition to company's property. Thus can responsibility that oneselfbear limit in property range to put into Company their, so as not to bedemanded by company creditor, This is a principle of " no control, noresponsibility" of the appellation of scholars. But of one-man Company, onepeople shareholder mostly participate in the management and administrationof the company, a person shareholder and a person's company are extremely easy to confuse. Because at the same time the power without othershareholders checks and balances, a person shareholder is extremely apt toabuse one's own advantage status, totally control a person's company. Thusdamage the creditor's interests, this seems contrary to principle not "nocontrol, no responsibility", Thus put forward the challenge in theory toshareholder's limited responsibility system. Just because of this, somescholars do not agree with the existing legally of one-man company at first,Do not agree with shareholder's applicable limited responsibility principle aperson either. But one shareholder, Company of people, enjoy limited favourof responsibility, its rationality can't be denied either, This not only startsfrom the need of the economic life, determined by a kind of agreement thatis reached between country and investors, And has offered the support intheory for it from " people's limited responsibility " to the development ofthe limited responsibility theory of" limited responsibility for the thing". Atthe same time through strengthen, can reduce limited responsibilitypossibility that abuse to one-man company. In order to enjoy the favour oflimited responsibility, the individual investor must choose the company withlimited responsibility shape at first, Secondly must also meet company'snorm and shareholder's behavior and shut important documents such as therule, etc..In view of the particularity of one-man company, Implementing limitedresponsibility to think in absolute terms, must cause risk distributionprinciple inappropriate destruction among one -man Company, This not onlyto creditor obvious inequity, but also it is one people shareholder that abusecorporate juridical person dose create space, In order to fully protect thelegitimate interests of the creditor of a person's company and other interestedparties, We should improve the system of a person's company shareholder's"exception of limited responsibility". Though the current regulation of "thecompany law has " increased " the exception of limited responsibility " ofour country, And has made the particular provisions on burden of proof to aperson's company shareholder's " exception of limited responsibility ", Butbecause a dose of good assurance of demarcation line abused of corporate juridical person, have difficulty operated on the judicial practice, It is thelegitimate interests of safeguarding relevant subjects better, we should makethe corresponding regulation in " exception of limited responsibility " isoperated specifically. As regards one-man company, We should want one,behavioral important document, important document and burden of proof offruiting to make the clear regulation in the subject on assigning.At the sametime seeing that a person shareholder lives in the superiority of the status,We should stipulate than other type Company range heavy " limitedexception of responsibility " space. Once the fund of a person's companyappears prominently and insufficiently, Or personality confuse, one peopleshareholder utilize the company to carry on the illegal activities with onepeople shareholder as one people dose, legal person of Company to carry onthe illegal activities. A person shareholder carries on the improper situationof controlling etc. to the company, While doing harm to the creditor'slegitimate interests at the same time, Should temporarily no matter onepeople independent legal person dose of Company, Make the exceptionalregulation in shareholder's limited responsibility for one-man Company,Require one people shareholder bear joint liability to the corporation loan.Meanwhile, we should prevent abusing a person's company shareholder's "exception of limited responsibility " too, In order to avoid influencing thestability of economics and society, bringing greater danger.