Applicable Research On The Legal Person Personality Denial Rules Under The Background Of The New "Company Law"

The application of disregard of the corporate personality is chaotic in judicial practice and does not form a uniform applicable standard.Defining the application of disregard of the corporate personality is not only to provide a better theoretical basis for the application of “Corporation Law”,but also to provide a basis for better protection of the interests of creditors in practice.In the theory of “Corporation Law”,the independence of corporate personality is an important aspect,and the shareholders should not abuse the independent status of the legal person and the limited liability of shareholders to damage the interests of the creditors.As one of the main participants in the market,the development of the company plays an important role in the construction of the market economy.The “Company Law” was amended in 2013 to abolish the restrictions on statutory minimum capital and the requirements for capital contribution way,capital contribution time and statutory capital verification,which raised new challenges for the application of disregard of the corporate personality.China's judicial practice of disregard of the corporate personality has three main forms: obvious insufficient of capital,confusion of personality and over-control.And the recognition of obvious insufficient of capital is often based on statutory minimum capital.If lower than statutory minimum capital,it may be identified as a significant shortage of capital,which applies to disregard of the corporate personality.The new "Corporation Law” abolished the statutory minimum capital and a series of restrictions,so that the basis previously applicable for the disregard of the corporate personality in practice no longer exist,how to apply the disregard of corporate personality therefore has become an urgent problem in the theoretic and practical field.Just based on the above background,this paper studies the application of disregard of the corporate personality mainly from the following parts:The first part is an overview of disregard of the corporate personality.It analyzes the rule from the perspective of concept and connotation and summarizes it three characteristics: First,it takes the independent personality of the legal person as the premise.Second,it disregards the corporate personality in individual cases.Third,it is a kind of afterwards legal regulation.This chapter expounds the contractual nature of disregard of the corporate personality,and reveals the necessity and inevitability of applying disregard of the corporate personality.The second part elaborates the specific influence of the new revised “Corporation Law” on disregard of the corporate personality,including the influence of abolishing the statutory minimum capital,abolishing requirement for capital contribution way and abolishing statutory capital verification on disregard of the corporate personality.Under the aforesaid influences,the author makes a concrete empirical analysis on the application of disregard of the corporate personality.And through analyzing relevant cases about the application of disregard of the corporate personality in local courts,it can be seen that: the application of disregard of the corporate personality in local courts is very cautious and do not have a unified applicable standard,and even the phenomenon of abuse is also common,which is very unfavorable for the protection of creditors.The reason for this phenomenon is that the law does not provide a uniform standard of application,nor does it has the relevant judicial interpretation and corresponding guidance cases to define its application.According to this,the three problems need to be solved in the specific application are proposed,that is obvious insufficient of capital,confusion of personality and determination difficulty of over-control.The third part proposes more specific criteria for the difficulties on three identified aspects said in the second part.First,it is necessary to solve the determination problem of obvious insufficient of capital,so we must clarify the time node of the standard and define behaviors constitute the obvious insufficient of capital.Second,it is necessary to address the determination difficulty of confusion of personality,so we need to clear its application requirements and the degree of confusion,in addition to understand confusion of personality in two types of special companies.Third,it is necessary to resolve the determination plight of over-control,so we need determine the relevant standards of over-control through analyzing relevant circumstances of the parent company's over-control to its subsidiary.The fourth part is a detailed analysis of improvement approaches to disregard of the corporate personality,it states mainly from three aspects: First,issue relevant judicial interpretations of the application of disregard of the corporate personality to make a clear standard for judicial authority.Second,improve the relevant burden of proof to ensure that creditors could effectively bring judicial relief.Third,play the guiding role of directive case to the courts at all levels.