An Empirical Study On The Applicablec Onditions Of Disregard Of Corporate Personality In China

The system of disregard of corporate personality stipulated in the third paragraph of Article 20 of the company law includes three elements: the abuse of the company's independent personality by the shareholders,the evasion of debts and the serious damage to the interests of creditors.Among the three elements,the scope of shareholders,the type of abuse,the nature of debt evasion,and the identification standard of serious damage are not clear.In order to understand the specific application of these elements in judicial practice and better understand the system of denial of legal personality,the paper collected 101 cases of denial of legal personality in China's judicial documents network for specific analysis.It is found that there are various forms in the application of the three elements of disregard of legal personality.Among the main elements,the shareholders who are the defendants are mainly the controlling shareholders,and they are not required to retain their shareholder qualification when being sued.The types of abuse mainly involve mixing personality and withdrawing capital,etc.,there are two understandings of the nature of the element of evading debt,one is the aim,the other is the behavior,the other is the behavior of the defendant,and the other is the behavior of the plaintiff,the main circumstances are the plaintiff's interests are seriously threatened or even impossible to achieve,the defendant has no property to implement,the defendant's malicious disposal of property,etc..In terms of the relationship of the three elements,the judgments of some courts mainly highlight the two elements of abuse of the company's independent personality by the shareholders of the company and serious damage to the interests of creditors,the latter instrument will inevitably add the element of debt evasion when quoting the legal provisions,which is not elaborated in detail and seems to acquiesce in the existence of the other two elements;Some court documents enumerate and affirm each of the three elements before they apply to the denial of corporate personality;some documents emphasize the causal relationship between the first and third elements,only the two have such a relationship,only then can carry on the denial to the company personality,this causal relations emphasis whether constitutes the company law personality denial system the fourth essential factor to have the doubt.The empirical results show that China's judicial practice has made a rich exploration of the applicable elements of the system of denial of legal personality,and made fruitful efforts to understand the system of denial of legal personality deeply,but at the same time,there is also the problem of different judgment of the same case caused by the difference of understanding.From the perspective of feasibility,it is suggested to sum up the experience of judicial practice,to consider adding the corresponding detailed standard in the fifth or sixth judicial interpretation of company law,or to take the opportunity of this revision of company law,in the company law to add the corresponding provisions of the application of detailed requirements.Specifically speaking,the system of disregard of legal personality in China needs to be optimized in the following aspects: refining the main elements,defining the standards of the behavior elements,providing the standards of the result elements and adding the causal elements.