On The Applicative Condition For The Doctrine Of Disregard Of Corporate Entity

A company,as the most important form of corporate organization and the main body of market in modern society,is mainly based on its independent personality and shareholder's limited reliability.Company's personality is independent of shareholder's personality,which causes it to become the genuine independent market main body,and simultaneously the limited liability reduces shareholder's investment risk,thus the shareholder has undertaken the responsibility in the limited scope.It is precisely such superiority that enables the company massively to exist in ours economic life,which promotes the economic and social development.But we have to face such reality that,while the company plays its positive role,company's personal independence and limited liability protects the shareholder's benefit and encourages investment,it possibly becomes the tool that shareholder use to violate the creditor's rights,the national interest and the social public interest.It is the best proof in the real life that the shareholder abuses corporate independent personality and limited liability to harm the behavior of the creditor's benefit.Everything has its two sides.The company is typical representative,but we cannot give it up for fear of its negative aspect;On the contrary,we cannot only see its positive aspect,but ignores its negative effect.It is just based on such a starting point that the Doctrine of Disregard of Corporate Entity originated in US is used and absorbed by many countries.The Doctrine of Disregard of Corporate Entity is the organic part of corporate personality system,which is set up to stop the shareholder to abuse the corporate independent personality and limited liability,and violate the corporate original intention of design and the fair, just basic value concept,therefore its existence first take observation of corporate personality as the premise.In order to avoid vacillating the basis of corporate personal independence because of the abuse of the Doctrine of Disregard of Corporate Entity,and go from one extreme to the other,every country makes strict regulation of the applicable condition of the Doctrine of Disregard of Corporate Entity.Before the 2005 new Company Law comes out,there are very few about the system of the disregard of corporate personality in legislation, and also many disputes exist theoretically.In reality,however,the phenomenon that the shareholder abuses corporate personal independence and limited liability exists a great deal.It complies with the trend of development that the system of the disregard of corporate personality is established in statute law,which will play a good role to effectively solve the problem of company personality independence and the shareholder limited liability in reality.These show that new Company Law about the regulation of disregard of corporate entity is a big pioneering work and the breakthrough in Chinese company legislation history.But we must see it clearly that our country's regulation of the system of the disregard of corporate personality also has many insufficiencies,which also needs us to unceasingly use for reference and absorb foreign legislation experience and the technology,unify China's national condition,further consummate the system of the disregard of corporate personality,still play its positive role well,and eliminate its malpractice.And it involves widely,also taking its appliable condition as the core.Based on such goal,I has chosen appliable condition of the disregard of corporate personality for the topic of the paper, and mainly carries on the elaboration from the following four parts.The first part,first macroscopically elaborats the system of the disregard of corporate personality,and mainly introduces its meaning,comprehensively analyzing its essence and the characteristics on this basis.Next,existence of any system has in its theoretical and practical basis,and the system of the disregard of corporate personality is not certainly exceptional.From the aspect of honest credit,not abused right and corporate social responsibility,the paper mainly elaborats its theoretical basis of existence,and also elaborates its practical basis from the aspect of the flaw of the system of the disregard of corporate personality and the applicable present situation.The second part,discovers company's veil,or the system of the disregard of corporate personality,which not only appeared yesterday.To use it for referece and absorb this system better and more comprehensively, we must get to the bottom.Therefore,this part first combs the formation, development and applicable condition in the UK-US legal system and the mainland legal system country comprehensively.In its basis the system of the disregard of corporate personality in two big legal system will be induced and summarized.By means of induction and summary of applicable condition of the system of the disregard of corporate personality in two legal system,the paper,in the third part,unifies the related regulation of the system of the disregard of corporate personality in our new Company Law.From the angle of principle of law and judicial practice,applicable condition of the system of the disregard of corporate personality in China is given a detailed anlysis of the main body,the behavior factor,the result factor and the consequence relation,which forms the basic struture of applicable condition of the system of the disregard of corporate personality.The fourth part is the key point and the goal of the paper.On the basis of analysis of the applicable condition of the system of the disregard of corporate personality,this part first affirms the positive significance of it. Simultaneously aiming at our country newly Company Law about the system of the disregard of corporate personality,it has pointed out its flaw and the insufficiencies in five aspects.According to actual situation of our country's legislation and theory,it has made the earnest consideration to flaws and insufficiencies,afterward,in view of these,from the three aspects of legislation,the judicial interpretation,and discretion given to judges,the paper puts forward several proposals to consummate the way and the actual content of the system of the disregard of corporate personality.