Research On The System Of Personality Denial Of Affiliated Company

The company law of the People’s Republic of China(hereinafter referred to as the company law)revised in 2005 explicitly stipulates the system of denial of personality for the first time.As an imported product,the system has been in operation in western countries for a long time and has produced positive social effects.It is of great significance to write it into the company law.However,with the emergence of affiliated companies in the market economy,the limitation of Article 20(3)of the company law is becoming more and more obvious,and the subject of responsibility stipulated in this article is far from adapting to the new situation emerging in the society.In order to alleviate the difficulties in the judicial application of judges,the Supreme People’s court judged the situation and issued the No.15 guidance case in 2013,which confirmed to a certain extent that the subject of personality denial system includes affiliated companies,which provides a reference for the judge to make a decision in judicial practice.In line with the idea of unifying the trial and standardizing the discretion of judges,the Supreme People’s Court published the minutes of the National Conference on Civil and commercial trial of courts(hereinafter referred to as the minutes of the ninth civil and commercial trial)in November 2019.The summary further explains the company’s personality denial and its content,and brings the related company into the situation of personality denial in the abuse behavior of excessive domination and control.Although the summary is not the basis of judgment,it can be used as a reason for the court to reason,so it is of great significance to the trial practice.However,there are still some problems in judicial practice,such as the dispute of legal citation,the distribution of the burden of proof and the responsibility of the controlling shareholders.As a country of written law,guiding cases and meeting minutes are neither laws nor judicial interpretations,nor the basis for invoking norms in judgments.At best,they can be used to strengthen the reasoning part.Therefore,in view of the above problems,the author uses comparative research method,case analysis method and value analysis method to study the personality denial system of affiliated companies,and proposes some practical suggestions to construct the personality denial system of affiliated companies in China based on the theory and experience inside and outside the domain.The article is divided into three chapters.The first chapter discusses the theoretical basis of personality denial system of affiliated companies,which includes three sections.The first section defines the connotation and types of affiliated companies,and divides them into equity form and contract form;the second section analyzes the basic theory of personality denial system of affiliated companies,and analyzes the theory in line with personality denial system of affiliated companies from agency theory and tool theory;the third section mainly analyzes the necessity of constructing personality denial system of affiliated companies.The necessity is analyzed from three aspects: the lack of legislation,the burden of proof and the responsibility of controlling shareholders.The second chapter investigates the system of denial of personality of foreign affiliated companies.The first section analyzes the conzern system in Germany and obtains the enlightenment for China.The second section analyzes the triangle piercing system in the United States and summarizes what can be used for reference in China.This provides excellent overseas experience for the third chapter to construct the personality denial system of affiliated companies in China.The third chapter puts forward the specific measures to construct the personality denial system of affiliated companies in China,which is divided into four sections.The first section analyzes the principles of the system construction,mainly from the protection of creditors principle,the principle of independent personality,the principle of fairness and justice,to provide support for the following three aspects of system design.The second to fourth sections respectively make clear provisions on the constitutive requirements and identification standards,the transfer of burden of proof and the obligations and responsibilities of controlling shareholders.