Study On Judicial Application Of Personality Confusion Of Affiliated Companies

The Company Law in China creatively sets down the judge-made rule of corporation personality denial in the form of written law,but there’s distance between legal terms and practice.Not only do there exist ambiguity and weak operability,but as the economy and the society develops rapidly,there are also obvious limitations in face of huge numbers of personality confusion of affiliated companies that infringes on the interests of creditors.In response to the above,the NO.15 Guiding Case extended the subject of the corporation personality denial system to affiliated companies.The number of such cases soared after that,though it did work,but questions like how to clarify the trial rules,how to define personality confusion,and how to accord consistent judgments to similar cases had been debating ever since,thus the courts met hindrance when hearing similar cases.Then the Conference Minutes gives a further regulation when applying corporation personality denial system to personality confusion of affiliated companies.One year after its issue,its practical effects still needs to be evaluated.But there is no denying that Guiding Cases and the Conference Minutes cannot be quoted directly as legal provisions in specific cases.Moreover,it is not so much suitable to use the provision of Paragraph 3 Article 20 of the Company Law as the judgment basis of such problems through the application by analogy or expanded interpretation,neither of the civil law principles.This paper is intended for the study of the judicial application of the personality confusion of affiliated companies from the perspective of empirical analysis.Firstly,it summarizes the basic concepts of the personality confusion of affiliated companies,to sort out the definitions of affiliated companies and personality confusion in theoretical and practice circles,and put forward the identification of the personality confusion of affiliated companies;and then it analyzes the essential elements of applying the corporate personality denial system to the personality confusion of affiliated companies;it also sorts out the development process of judicial practice,and makes brief comments.Secondly,it gathers the judgment documents on the cases of personality confusion of affiliated companies from 2018 to 2020,first analyzes the overall situation of the sample,and extracts seven factors（types of creditors,types of affiliated companies,evidence presented by creditor,evidence presented by affiliated companies,factual basis,legal basis,refereeing results）to carry out a statistic analysis.Thirdly,based on the analysis of sample cases,it puts forward some existing problems in the current judicial practice of the personality confusion of affiliated companies,such as the absence of refereeing basis,the deficiency of judicial judgments and the unreasonable distribution of burden of proof.Lastly,on the basis of the existing theoretical research and empirical analysis,this paper puts forward some suggestions on judicial application of personality confusion of affiliated companies:first,it is necessary to strengthen the source of law,to establish a evaluation system of legal personality denial,to issue relevant judicial interpretations,to make up the deficiency of the Guiding Cases,thus to establish a set of dynamic judicial evaluation system;second,it is necessary to standardize the applicable elements,from the aspect of subjects,behavior,results and causation,to push forward the applicable requirements;third,attention should be paid to improving the judicial application procedure,and make reasonable distribution of the burden of proof;fourth,to accord a general unity of the referee’s thinking,and pay attention to reasonable limitation of discretion...