A Judicial Empirical Study On The Denial Of Legal Personality Of Affiliated Companies

With the continuous development of the market economy,many companies have set up affiliated companies in order to meet the changes of the times.This new market economic entity,while promoting rapid economic development,also brings new challenges,namely,how to protect the interests of creditors in the new market environment.Since its first enactment in 1993,the Company Law of the People’s Republic of China（hereinafter referred to as "the Company Law"）has undergone four revisions.In 2005,the third revision of the Company Law,Article 20 of the Company Law has sorted out the applicable elements of the personality denial system,which is the first time in the world that the personality denial system has been included in the This is the first time that a personality denial system has been incorporated into a statutory law.However,due to the limitations and lag of the law,the legal personality denial system is only applicable to the shareholders of the company from the perspective of the interpretation of the text,and there is no clear provision for the affiliated companies that do not have equity relationship,which makes the court in the judicial decision does not have a unified basis for the decision.The courts in China,when adjudicating the cases of mixed personality of affiliated companies,there is a problem of inconsistency in the scale of adjudication and the standard of finding mixed personality,and the legislation does not provide for whether the personality denial system can be applied to the cases of affiliated companies as the main body,and there is room for filling.In 2013,the Supreme People’s Court published Guidance Case No.15,which held that affiliated companies can also "apply" the legal personality denial system in the Company Law by reference,and the publication of this case has to a certain extent alleviated the dilemma of "not being able to comply" at that time.At the end of 2019,the Minutes of the National Conference on Civil and Commercial Judicial Work of the Courts（hereinafter referred to as the "Jiumin Minutes"）were published.The Jiumin Minutes provide detailed answers to the key issues of concern to the academic community as well as the judicial practice community,and the three situations of personality denial are described in detail in the section specifically for companies,listing The "Ninth Civil Minute" provides detailed answers to the concerns of the academic community as well as the judicial practice.However,the No.15 guiding case and the "Nine Civil Minutes" are not formal sources of law in China,and the reference to them as a guide for adjudication cannot fundamentally solve the dilemma of "no way to follow" in China.In view of this fact,this paper essay to make effective suggestions to ameliorate the system of denial of legal personality of affiliated companies in China through the theory of denial of legal personality combined with the judicial cases of denial of legal personality of affiliates decided by the court in the past five years.This paper is divided into four parts.The first part sorts out the theoretical basis of the affiliated company personality denial system,which mainly includes two aspects: firstly,it discusses the nature of affiliated companies and elaborates the connotation and types of affiliated companies,and secondly,it discusses the relevant theoretical system of affiliated company personality denial from the theories of domestic and foreign academia.The second part is denial of legal personality of affiliated companies in the past five years.82 sample cases are screened out after eliminating irrelevant cases,and the overall situation is statistically analyzed,and then three representative cases and 15 guiding cases are selected to sort out the facts and main points of the cases,which pave the way for the following analysis.The third part discusses and analyzes the controversial focus of affiliated company personality denial cases,the courts at all levels have different legal provisions invoked for affiliated company personality mixing,and the composition elements of affiliated company personality mixing are not uniform.There is no clear and definite judgment scale and no unified standard of personality mixing of affiliated companies.The fourth part is a proposal to improve the system of denial of legal personality of affiliates in China.Mainly from two aspects of the discussion,on the one hand,to improve the legislation on the system of denial of legal personality of affiliates;on the other hand,for the court in the application of affiliates in determining the system of denial of legal personality to strictly seize the composition of elements.