| There is no absolutely perfect institution in the world; the company institution has not been exceptional. Because of the independence of corporate personality, the shareholder only needs to undertake the limited liability that the lawless man takes advantage of institution flaws, or for avoiding the obligation by contract or law, or goal of for the cheat, abusing corporate personality independence to evade responsibility, or the shareholder confuses the personal property with the company, proposed its debt maturity is only limited liability for shareholders, in order to disavowal debt. Not merely it causes the creditor to be at the inferiority position, moreover also increases the relative risk of the contract. Therefore, in order to maintain fairness and justice require, the institution of disregard of corporate personality has come into being. Because the institution of disregard of corporate personality can play up the traditional corporate loopholes in the institution, to effectively regulate the behavior of shareholders, the role of protecting the legitimate rights of the creditors, many countries have learned and emulated it.The time of China's implementation of the company's institution is not long, but our country corporation institution is not very strict, all kinds of abuses that the independent personality of the illegal acts against the interests of a third are very common. For example: in the process of setting up a company, false investment, false verification, after the company is founded, the flight of investment makes the company become an empty shell; Company's capital are very few that doesn't match the size of the company and the risks. Company is borrowing from the majority of the necessary funds, leading to the risk which the company manages to be enormous, the creditor's rights are not protected; Dummy company's board of directors or shareholders, the actual by the controlling shareholder was manipulating the company, once the company went bankrupt under the guise of corporate form to evade responsibility; Controlling shareholders will confuse personal property and corporate property, and even place of business, account books, personnel are identical. How to protect company creditor rights better with the institution of disregard of corporate personality which has become one of the current important topics.As Japan and China have certain similarity in geographical environment, economic and cultural, In addition, China and Japan have introduced the mainland legal institution pattern, there is quite similar in the legislation, the judicature and so on each domain. In legal practice, the institution of disregard of corporate personality as the extraterritorial character of the advanced institution was introduced in China and Japan has become a necessary supplement company institution. Therefore, learning the advanced institution of Japanese law has a practical significance to the institution construction of China's companies. The characteristics in the institution of disregard of corporate personality of Japanese law manifest in:First, persist in the equitable norms of the institution. In order to achieve justice in cases, it is not to deny the company institution's rationality to the company independent personality temporary denial. On the contrary, this kind of denial realizes benign development for the company institution and cause the company institution to be more perfect. Therefore, the institution as the equitable norms is the supplemental standard. Only if the corporate institution is unable provide relieves of the creditor right the institution of disregard of corporate personality will be used. In legal practice, the company institution is the first one which is priority than the institution of disregard of corporate personality. If abuse the institution of disregard of corporate personality it will inevitably lead to the collapse, confusion in the market economy, the transaction process unfair phenomenon. As the metaphysical to follow the company's institution will cause the creditor to be at the weak trend position, the abuse of the institution will cause the companies and the shareholder are in the inferior position in the transaction, which lead to serious damage in transaction security and stability. Shareholders in the company institution for the case of abuse before they can apply supplementary disregard of corporate personality. Japanese law on the institution of disregard of corporate personality well reflects this.Second, ask the judge to play the main role to determine whether the application of this institution, then determine whether the shareholders or the parent company to take responsibility and how to take it. Thus to promote the progress of the institution, in the mainland legal institution's country, judges based on the facts of Authority to judge the law, and then make a decision based on such judgments. This civil law features in the process of the Japanese institution of disregard of corporate personality has played a huge role. Japan's judges not only may judge the responsibility undertaken by the shareholders, but also judge the parent company or the others which has a real dominant subject to undertake the responsibility. In addition, the results of the institution must be achieved through the discretion of the judge. Because the abuse behavior of corporate personality violating the company institution's original intention has departed from the honest credit principle, the law needs certainly to deny the legitimacy of such acts and call for the owner to compensate for the damage abuse results caused. The pursuit of the most important effect of disregard of corporate personality is that it does not fully deny the existence of company, acknowledge that the company as an independent legal personality. On this basis, the specific legal relationship, deny its law personality temporarily in part. That is in a particular legal relationship, because of the abuses and the skeletonization the independent legal personality will be temporarily denied, shareholders will replace the company's obligation and responsibility. But the applicability of this institution must be made by the judge to judge.It is not difficult from the above characteristic to see the Japanese institution of disregard of corporate personality does have its advantages. For example, in the Japanese institution of disregard of corporate personality establishment process, court decisions at all levels have delimited the applicable scope of the disregard of corporate personality roughly, greatly enhanced the practicality of disregard of corporate personality, and made an equitable norms have a specific tone;Based on the Japanese experience, combined with our national conditions, it can strengthen the institution of corporate personality aspects of theoretical research; take the equitable norms and the flexibility as an effective supplement to the existing corporate institution. At the same time, through judicial interpretation and the Supreme People's Court case, rich content, to further develop the main role by the judge in the development of the institution of disregard of corporate personality. |
