It originates from the alienation of corporate personality and the abuse of shareholders' limited liability. It first appeared in the cases of common law countries, and was later used for reference and adopted by some civil law countries. It is called "direct responsibility" in Germany and "perspective theory" in Japan. As far as the concept of corporate personality denial is concerned, there is no unified understanding. But we can discuss its significance from its background and some classic expositions. Denial of corporate personality is a legal system corresponding to corporate personality independence. The traditional company law endows the company with independent personality, and the company should have its own independent will and bear the responsibility independently with its property, while the shareholders bear the responsibility within the limit of the capital they have invested, that is, limited liability.
Second, the legal characteristics of corporate personality denial
1, on the premise of recognizing the company as an independent legal person. Although the denial of corporate personality has the function of denying the independent personality of the company, it is aimed at companies with corporate personality and personality abuse. Due to serious illegal circumstances, the company cannot be established or its establishment is invalid (such as being revoked or dissolved by the relevant competent authorities or courts according to law due to serious violation of legal establishment procedures or conditions). ), does not belong to the category of corporate personality denial theory or system.
2. The shareholders of the company abuse the corporate personality and damage the interests of creditors and social public interests. When shareholders abuse the company's independent personality and shareholders' limited liability, the law recognizes the company's independent personality and shareholders' limited liability, while reducing shareholders' investment risk. At the same time, it also restrains the relationship between the company and its shareholders through some system designs, so as to safeguard the transaction security, the interests of creditors and the public.
3. It is not universal to deny the company's independent legal person qualification only on the grounds of specific legal relationship in specific cases. "Denial of corporate personality" is a confirmation and revelation of the loss of independent personality of a company in a specific situation, a typical case denial, and a reflective balance based on the pursuit of concrete appropriateness and substantive justice of legal relations. "It is only a specific case, the company's independent personality was denied.
Thirdly, the essential characteristics of the system of denying corporate personality.
The theory of denying corporate personality means that, relative to the purpose of corporate system, for a company, "the implementation of its formal independence is deemed to violate the concept of justice and fairness, and it does not completely deny the existence of the company, but only denies the function of its corporate personality in a specific case while acknowledging its existence, and legally regards the company and shareholders as one." Therefore, the essential characteristics of the corporate personality denial system are as follows:
1. The premise of denying the corporate personality is that the company has an independent corporate personality.
The denial of corporate personality has the function of denying corporate personality in individual cases, but it is aimed at companies whose corporate personality is abused, that is to say, the denial of corporate personality must be based on the effective establishment of the company. If the company is not established at all or its establishment is invalid, then it is impossible for the company to have personality, let alone deny it. Although the establishment of a company requires legal conditions, in practice, organizations that do not have legal conditions may be registered for various reasons.
2. The system of denying the corporate personality is to deny the independent personality of the company in individual cases.
The denial of corporate personality is not a complete and permanent denial of corporate personality, but only a denial of corporate personality in a specific legal relationship. The denial of corporate personality is by no means the revocation (closure) of corporate organizations, and it has no absolute influence on the world. It's just that "based on the purpose of the legal person system, when some elements exist, only the specific legal relationship that has become a problem and only the legal relationship between specific parties, the effectiveness of its legal person qualification is regarded as non-existent".
3. The system of corporate personality denial is a legal system to provide relief for the interests of companies that are unbalanced afterwards.
Fundamentally speaking, the formulation and application of any legal rules is the adjustment of interests, and the denial of corporate personality is no exception. Its fundamental function is to give legal relief to the parties who cannot get rights and interests relief within the framework of the traditional company system because of corporate personality abuse by investigating the joint liability of corporate personality abusers. It is to readjust and remedy the unbalanced interest relationship to reflect the legal norms of fair and reasonable distribution of interests and burdens among the parties required by the company law.
Fourth, several problems that should be paid attention to in establishing the system of denying corporate personality in China.
1, the Supreme People's Court made a timely judicial interpretation.
Judging from the current theoretical basis and legislative technology, the provisions of the theory of disregard of corporate personality should be coarse rather than fine. For the contents that cannot be accommodated by the legal provisions themselves, they can be regulated through judicial interpretation in the future, and then relatively detailed and specific provisions can be made in legislation after the experience and technology of all aspects are mature.
2. Pay attention to the role of precedent in practice.
While attaching importance to the written law, although the precedent has no legal origin in China, in the absence of explicit provisions in legislation, it can be considered that in judicial practice, judges should take the basic principles of civil and commercial law such as honesty and credit and prohibition of abuse of rights as the criterion. As a legal basis, we should give full play to the role of judges in explaining laws and supplementing legal loopholes under certain conditions, break through the specific provisions of existing laws through judges' discretion, realize the balance between the interests of both parties and social interests, and solve the application problem of the theory of corporate personality denial through precedents.
3. The company's personality denies the prohibition of abuse.
"All people who have rights are prone to abuse their rights. This is a difficult experience for thousands of years. People who have the right to use the right have always stopped at a place with boundaries. " The system of denying corporate personality is a supplement and perfection to the traditional company system. If abused, it will not only impact the company system and deny its own existence value, but also lead to new unfairness and injustice.
Verb (abbreviation of verb) conclusion
In recent years, many scholars in China have devoted great interest to the theory of disregard of corporate personality, and even had a heated academic debate. Most of them focus on the theoretical foreshadowing and legislative conception of corporate personality denial, but there is little discussion on how to apply this system in judicial practice. The author thinks that the situation of denying corporate personality belongs to tort, and the analysis method of general tort elements is also suitable for judging whether shareholders abuse corporate independent personality and shareholders' limited liability. In addition, as a litigation case, the case of corporate personality denial also has its particularity, and a series of procedural issues, such as the jurisdiction court, the determination of the parties, the distribution of the burden of proof, and the applicable effect of the judgment, are different from ordinary tort cases. Of course, in order to make the law on paper become a reality, the running state of the legal system is very important, which requires the judicial organs to strengthen their own relevant system construction, thus truly demonstrating the prestige and effectiveness of courts at all levels.