Research On The Disregard Of Company Personality From The Perspective Of Affiliated Companies' Personality Confusion

This paper argues that the disregard of company personality system can be extended to apply to the personality confusion of affiliated companies,which is in line with the legal basis and legislative purposes of the disregard of company personality system.However,in the current judicial practice,there are still many disputes and problems in the application of the disregard of company personality system in such cases,mainly reflected in the disputes applicable to the law,the identification of the constituent elements of the disregard of company personality system and the issue of the burden of proof.Regarding the disputes applicable to the law,this paper argues that the current practice of expanding and applying the existing legal provisions through the guidance cases is only legally found to be justified and does not solve its practical adaptability problems in judicial practice.Therefore,special legal provisions or detailed judicial interpretations should be established as the legal basis for hearing such cases.For the identification of the constituent elements of the disregard of company personality system,this paper argues that the constitutional elements should be reconstructed: for the main elements,it should be clear that the subject of the disregard of company personality system includes shareholders and affiliates,even in the case of affiliated companies have personality confusion.While denying the personality of the affiliated company,the controlling shareholder behind the affiliated company should also be required to bear joint and several liability.At the same time,the scope of the affiliated company should be clarified;for the behavioral requirements,it should be clear what circumstances exist between the affiliated companies can be considered to exist personality confusion;And should focus on whether there is a mixture of property between the affiliated companies;for the result elements,the situation of seriously damaging the interests of the creditors should be clarified first,we can refer to the Bankruptcy Law,confusing “unable to pay off debts due” and “Assessing assets to pay off all debts or apparently lacking liquidity” as the standard of recognition.Secondly,it should pay attention to the investigation of whether there is a causal relationship between the personality confusion of the affiliated companies and the serious damage of the creditors' interests.For the problem of the distribution of the burden of proof,this paper argues that the burden of proof should be reversed and the burden of proof should be distributed reasonably.In the distribution of the burden of proof,emphasis should be placed on the ability of creditors to provide evidence in different creditor-debtor relationships.Voluntary creditors should bear more burden of proof than involuntary creditors.