Nature Determination And Regulation On The Behavior Of One-person Company Shareholders' Occupying Or Misappropriating Company Property

In juridical practice,distinct judgments occur in the same case as for the question that how to determine the nature of one-person company shareholder's behavior of possession,misappropriation of company funds.Through comparison of the two cases and base of court decisions of them,we can find they are almost the same in the aspects of fact-finding and application of statutory laws.The reason of disagreements is nothing but judges' different understanding of the law.With regard to the case that possession,misappropriation of company property may involve the "crime of embezzlement" and "misappropriation of funds",the theoretical circle holds two diverse opinions in terms of its object: complex object and single object.This paper approves the latter,that is,"property rights of company,enterprise or other units".According to the existing Company Law of the People's Republic of China,if shareholders of one-person company in the course of daily operation of the company do not achieve the distinction between company's property and personal property in accordance with the "Company Law" requirements which leads to the damage to the company as an independent legal entity,they will be ordered to undertake joint liability for the company debts with their personal property according to the one-person company "corporate personality denial system" in the Company Law,article 63.This paper holds that the provision identifies the legal nature of the case after confusing the shareholder's personal property and that of the one-person company in the facts,that is,it admits that once the one-person company has lost independence of legal person's property,the company property is equal to shareholder's personal property both in law and in reality.From the object of crime of misappropriating fund and crime of embezzlement,combing with the legal effect of applicability of one-person company legal personality,we can assume that one-person company shareholder's behavior of possession,misappropriation of company funds can be regarded as the domination of personal property,which does not violate the interests of any person and does not have social harmfulness required by criminal law.Starting from this object,consider the special relationship between one-person company and its shareholders as well as the application of one-person company legal person personality denial system,it is difficult to identify that the possession or misappropriation of company property of shareholder would cause damage to the company's property interests,thus will not against the object of the embezzlement and misappropriation of funds.Therefore,we can say that the occupation or misappropriation of company property of one-person company shareholders,can be regarded as the domination of his personal property which neither infringe anyone's interest nor have a specific social harmfulness that for crime demands,thus it cannot be identified as embezzlement and misappropriation of funds.The behavior of the one-person company's shareholders to occupy or misappropriate the property of the company shall be regulated by the means of civil law.As for the criminal regulation on this behavior,the decriminalization in the embezzlement and misappropriation of funds of the crime,can be made by the Supreme People's Court issued a judicial interpretation or to guiding case,the courts at all levels of legal interpretation and application of unified;While shareholders abuse the corporate personality denial system and occupy or embezzle the company' property malicious to escape the debt to the detriment of the interests of creditor which according with the elements of other crimes,in this case we can punish it by corresponding crimes(for example the crime of fraud).The root causes of the judicial problem dispute in this paper are the lagging of the criminal law and the incongruity between the various departments.With the socioeconomic,technological and other development,these similar problems will be more and more.The criminal law,together with other department laws,only in the way of developing with the social change,can it fully play its “the last bastion of social justice” effect.