| The disregard of corporate personality system originated from equity,so its applicable standards are still not clear.Even if China introduces the system as a statutory law,it can only be stipulated in principle in the company law.In China,the disregard of corporate personality is mainly classified into three types: personality confusion,excessive control,and significant capital shortage.Among them,there is not much research on excessive control,even if it is stipulated in the trial guidance document issued by the Supreme People’s Court which also failed to provide accurate and reasonable guidance for this type of judicial trial.This article is a combination of theoretical analysis and empirical research,based on the analysis of foreign regulatory paradigms,to explore the specific determination of shareholder over-control,in order to clarify its judicial application standards.The full text is divided into four chapters.The first chapter mainly focuses on the interpretation of the relevant laws and norms of excessive control in China,and examines the application status of the current law in an empirical way.The "Minutes of the National Civil and Commercial Trial Work Conference of the Courts" tends to define excessive control in descriptive language,which makes it difficult to accurately analyze the requirements and standards of the determination.Some of the typical situations listed in it seem to be similar to other shareholder responsibilities in the company law.In particular,it needs to be distinguished from the responsibility of shareholders for evading capital contributions and the responsibility of improper liquidation.Further empirical analysis of the application of meeting minutes and norms found that the expansion of the controlling shareholder’s identity and its identification standards,the judging standards for specific improper control behaviors,and the adjustment of the burden of proof are the most prominent issues,which provide focus of the determination of excessive control.The second chapter mainly discusses the theoretical and practical basis of excessive control,and clarifies the rationality and necessity of its categorization.In terms of theoretical basis,it is clear that the economic incentive function of the limited liability system is based on the assumption of a public company with a high degree of decentralization.In a closed company prone to excessive control,the high concentration of control leads to the weakening of the economic incentive function of limited liability.The reason for having limited liability privileges is no longer sufficient.From a legal point of view,the connotation and extension of excessive control are different from personality confusion,and there is a need for separate typification of excessive control.On the basis of reality,the concentration of control has led to the failure of the company’s shareholders meeting,board of directors,board of supervisors,and other internal governance mechanisms,and it is difficult for company creditors to free ride on the rights of minority shareholders.At the same time,in addition to the disregard of legal personality system,other creditor protection systems in company law and creditor’s rights preservation systems in civil law are not sufficient to prohibit abuse of excessive control.The third chapter mainly discusses whether it is necessary to carry out special regulation on excessive control in the context of the company group.Regarding the excessive control in company groups,the extraterritorial legal system has developed two regulatory models,the "separated entity" paradigm and the "single enterprise" paradigm.The "single enterprise" paradigm has developed in the United States and Germany.However,after examining its applicable standards and new developments in practice,it is found that the substantive judgment standard of the "corporate responsibility theory" in the United States is approaching the standard of piercing the corporate veil,and the German Konzern system gradually lacks practicality.There is no particularity in the excessive control of company groups,and China does not have the tradition of the "single enterprise" paradigm,so the "separated entity" paradigm should be adhered to uniformly regulate excessive control.The fourth chapter is mainly based on the inappropriate control behavior of shareholders in excessive control,combined with the results of empirical analysis,to explore the specific identification elements and reference standards of excessive control,including substantive elements and procedural elements.The substantive requirements are not unified in theory,but they can be roughly divided into three parts:control relationship,improper control behavior,damage consequence and causal relationship.The main dispute is whether the degree of control relationship is necessary or not,the criteria for judging improper control behavior and whether the“severity” requirement of the damage consequence is necessary.Therefore,it is necessary to start the discussion from the aforementioned three parts,and it is recommended to incorporate degree requirements into the judgment of behavioral elements.Judging the control relationship,that is the controlling position of shareholders,should be based on the situation of equity,agreement,personnel,and business.For shareholders under common control,the judgment should be based on the identity relationship and the consistency of the decision-making of specific improper control behaviors.However,it is not necessary that shareholders control is a very strict degree,and the actual controller should also bear the responsibility of controlling shareholders.Regarding the elements of improper control behaviors,improper control behaviors shall have caused serious and substantial damage to the company on the whole.Specifically,it is examined from the two aspects of impropriety and damage severity: impropriety also includes the overall damage standard and substantive damage standard;the damage severity standard for improper control acts matches the unlimited joint and several liability of shareholders,and It is required to compare with the amount of company assets that begin to accumulate when the misconduct occurred,and it must reach the level of damaging most of the company’s assets,otherwise the misconduct can only constitute the general tort liability of shareholders to the company.Regarding the result element that damages the creditor,the degree requirement has been absorbed by the behavior element,and it can meet the standard of the result element if the creditor cannot be repaid.The causality element is presumed in principle,allowing shareholders to provide evidence to refute,but it is not advisable to admit that the improper conduct is prior to the time when the company’s debt occurs.In terms of procedural identification requirements,the arrangement of the inversion of the burden of proof lacks a legal basis in the interpretation theory,and the legislative theory is unreasonable.It is recommended to relax the creditor’s permission to apply for court investigation and collection of evidence and judicial audit,and to cooperate with the provisions on the responsibility of refusal of providing evidence,thereby reducing the cost of proof for creditors.If the judgment in other case has determined that there is excessive control and the creditor uses it as evidence,the court should carefully review the content of the judgment,and it is not appropriate to directly refuse to adopt it because it is the only evidence. |
