Research On Judicial Application And Perfection Of Reverse Piercing Of The Corporate Veil

In 2005,the Company Law was amended to introduce the theory of piercing the corporate veil outside the territory as the system of Disregard of the Corporate Personality in China.As a supplement and exception to the limited liability of shareholders,this system stipulates that shareholders who abuse their rights should be jointly and severally liable for the company’s debts.Because the legal provisions are more principled and abstract,more requirements are put forward for the application of the Disregard of the Corporate Personality in the practice process.In the case of Sichuan Tailai Decoration Company case and the Sichuan Jiaotong Industry and Trade,the court made a breakthrough in acknowledging the reverse piercing the corporate veil between affiliated companies.Some scholars think that the reverse piercing is a kind of "triangular piercing",which is a combination of traditional piercing and reverse piercing.In the 2019 "Minutes of the National Court Civil and Commercial Trial Work Conference",the Supreme People’s Court clarified how the system of Disregard of the Corporate Personality is applied and the circumstances under which it applies,and affirmed the piercing between subsidiaries.However,in actual disputes,there are still cases where the interests of shareholders or the creditors of the parent company are damaged due to the confusion between the shareholders and the company.In this case,the traditional Disregard of the Corporate Personality has developed a new connotation,which is the Reverse Disregard of the Corporate Personality.The article is divided into three chapters.The first chapter introduces the origin and development of the Reverse Disregard of the Corporate Personality.Through the typological analysis of the reverse disregard,comparing the reverse disregard with the traditional Disregard of the Corporate Personality,and sorting out the existing cases outside the territory,the connotation of the reverse disregard is defined.The research on asset division theory responds to the controversy over the existence of reverse disregard,and provides the basic theory and logic for its legitimacy.The third chapter builds the theoretical framework of the system of Reverse Disregard of the Corporate Personality in China,including the constituent elements,the burden of proof and the responsibility.First of all,the case is introduced to illustrate that in practice,the traditional theory of Disregard of the Corporate Personality needs to be expanded and applied,not only horizontally,but also reversely when necessary.However,the existing systems in our country,including the traditional disregard,the creditor’s right of revocation system,the equity enforcement,the agency system,and the debt-to-things rule,are not suitable for becoming a suitable "alternative plan" for reverse disregard.Therefore,it is necessary to introduce the system of reverse piercing the corporate veil and establish the system of Reverse Disregard of the Corporate Personality in China.The third chapter analyzes the constituent elements of Reverse Disregard of the Corporate Personality.The subject of the claim of reverse disregard is the shareholder’s creditor,and the subjective elements of the actor should be inferred on the basis of objective facts about his subjective malice.The behavioral elements are divided into personality confusion and excessive domination and control,which can be applied to non-one-person companies in some cases.In terms of the result requirements,it needs to reach the level of seriously harming the interests of the shareholders’ creditors.The burden of proof should be allocated in stages.In terms of the way of assuming responsibility,the company is jointly and severally liable for the debts of shareholders.