An Empirical Study On The Application Of Personality Denial In China's Affiliated Companies

The application of the disregarding system of affiliated company personality has been subject to controversy between the theoretical and practical circles.According to the empirical data,since the initial publication of the Guiding Cases of the Supreme People's Court No.15 in 2013,the number of affiliations denied cases of personality has rapidly increased in judicial practice.From the perspective of total deny rate,the affiliates' personality denies cases in judicial practice From the point of view of accepting time,the number of affiliated companies denied.The perspective of regional distribution,affiliates' personality deny cases more occurred in economically developed areas;from the level of courts Look,the application attitude of the high-level court to the denial of personality is more cautious;from the point of view of the rating,the appeal rate of the personality denial case is higher and the rate of rejection and the rate of change of the judgment at the different levels differ greatly;from the organizational form,All affiliates in this case are limited liability companies.From the type of affiliates,sister companies accounted for the largest proportion,followed by controlling companies with affiliates and subordinate companies and affiliates without affiliates,Denied the application of the elements,the judicial practice has been formed with the main elements,behavioral requirements and results The elements of the standard three-element model;personality denial of reason has basically been identified as finance,personnel and organizational mix of three aspects;referee basis,judicial practice mainly through the "Company Law" Article 3,Article 20,paragraph 3,Article 64,and Article 7 of the General Principles of Civil Law,there are even some cases which refer directly to the direct trial of No.15 Guiding Cases;in respect of the burden of proof,the burden of proof currently afflicted by affiliates is mostly determined by the plaintiff Creditors bear.Although the current system of affiliation company personality denial has reached a preliminary consensus in the judicial practice,there are still problems in the three aspects of the applicable standards,referee basis and burden of proof.Although there are controversies over the applicability of the causal and main elements,the financial,business and organizational mix in the applicable situations have been approved.However,the details of these three aspects as well as the applicability of the three are still There are different opinions in current legislation on the personality of affiliates.There is a lack of legislation on the current personality denial of affiliates.Different judicial decisions in judicial practice are based on different grounds and there is not any other specific legal provisions and explanations on the personality denial of affiliates.In the current judicial practice,the responsibility distribution model of "who advocates and who gives evidence" is still used,and this model of distribution of burden of proof solves the problem that it is difficult for the creditor to prove his evidence in response to the denial of the personality of the related company.Considering that our country has been influenced by the civil law system for a long time,and the personality denial system has a strong case law color,it requires a higher level of judgement for the judges.Therefore,if we do not concretize the ion,it will be difficult to implement it in our judicial practice.Roots.Based on this,in order to achieve the unity of the applicable corporate personality denial system,it is necessary to clarify the applicable objects of the company's personality denial system,the type of applicable standards,and the standardization of the burden of proof.In teerms of the applicable objects,they were expanded to the actual controllers on the basis of the original shareholders;in the applicable standards,the factors of causality were added,and the three major confounding situations and the standards of free evaluation were clearly defined to increase the predictability of the referees;With regard to the distribution of responsibilities,through the establishment of preliminary certification responsibilities and further proof of responsibilities,and at the same time distinguishing between voluntary creditors and involuntary creditors,the standardization of the burden of proof system is regulated to ease the problem of the creditor's burden of proof.