The Application Of The System Of Disregard Of Corporate Personality In The Case Of Significant Shortage Of Capital

After the reform of the new capital system,China has made great adjustments to the original system,such as deleting the minimum amount of registered capital,capital verification procedures and so on,and establishing the full subscription system from the previous partial subscription system of registered capital.The purpose of these new institutional arrangements is to pay more attention to improving the spirit of business efficiency,and to enhance the enthusiasm of people to set up companies and carry out business activities.From the perspective of legal design,the new round of capital system reform gives priority to the development of commercial freedom,which means that the law tends to choose to protect the company’s independent responsibility between protecting the interests of creditors and protecting the company’s independent responsibility.In this case,the design of the legal system must find the balance point of reasonable distribution of transaction risk to ensure the safety of commercial transactions.In this context,the disregard of corporate personality system as an important system to protect the interests of creditors,more and more attention by legal scholars and practitioners.In particular,the application of "significant lack of capital" to pierce the corporate veil has attracted much attention.Many scholars believe that in the context of capital system reform,it will have more room for legal application.At the same time,the system of disregard of corporate personality,as a reference system from the common law system,has been practiced for less time in China,and its operation mode is relatively rough,which inevitably leads to "acclimatization".In China,the system of disregard of corporate personality only makes a rough statement of principle in Articles 20 and 63 of the company law,and there is no specific guidance for the judgment of operability.Therefore,it is urgent to determine the conditions for the correct identification of "significant shortage of capital",understand the connotation of "capita" and the definition of "significant shortage".In this paper,the legal basis of the system is not the minimum registered capital,but the compensation of the risk cost of shareholders.Before the reform of the capital system,the practitioners have directly tied up whether it constitutes a significant shortage of capital with the minimum amount of registered capital.After the reform of the capital system,the rationality of the existence of the significant shortage of capital system has been questioned.From the perspective of corporate credit and the historical origin of the system of significant shortage of capital,this paper finds that there is no legal logic relationship between the minimum registered capital and the significant shortage of capital.The legal basis for the existence of the system of significant shortage of capital is to make up for the risk cost of shareholders and limit shareholders to avoid risks and damage the interests of creditors.Combined with judicial cases,this paper makes an empirical analysis on the judgment points of significant capital shortage in judicial practice.This paper studies the definition of "capital",the identification of"significant shortage”and the judgment conditions of "significant shortage of capital".The empirical research part focuses on the summary of the trial characteristics of the cases with significant shortage of capital and the irrationality in the current judicial practice of significant shortage of capital.Based on the empirical research and the research results of the current theoretical circles,this paper determines the core problem of the significant shortage of applicable capital in the new context after the capital system reform.In the modern society where capital credit is gradually transformed into asset credit,the author thinks that the connotation of capital is defined as net assets,which can protect the interests of creditors to the greatest extent and has less influence on the enthusiasm of market subjects.The identification of significant shortage of capital is mostly related to the economic field,which needs the analysis of professional financial and economic personnel to make a fair and reasonable judgment.In the judgment time point of significant shortage,the author thinks that the time node of judging significant shortage of capital can be either when the company is established or after the company is established.When the company is established,it mainly examines whether the registered capital is sufficient compared with the company’s business scope,scale,risk and other factors;after the company is established,it mainly refers to the situation that the company’s capital needs to be increased or decreased when the business scope needs to be changed Compared with the size of the company after the change,it is obviously insufficient.Further discussion,in view of the judicial chaos in the application of"significant shortage of capital" summarized in the empirical study,this paper puts forward targeted and operable suggestions and measures,in order to play a better role in the relief of creditors and highlight the justice of the law.This paper mainly puts forward some suggestions from the following aspects:the distinction and convergence of different legal liabilities,the distinction of creditor types,the practical reference of the conditions for the determination of the significant shortage of capital,the diversified determination of the significant shortage of capital,and the prudent single application of the significant shortage of capital.