The Relationship Analysis And Concept Reconstruction Of Disregard Of Corporate Personality And Commingling Of Corporate Personality

In 2005,the history of the “Company Law” in China made an unprecedented recognition of the system of disregard of corporate personality in the form of a statutory law.Item 3 of Article 20 in the Law stipulates that “company shareholders abuse the independent status of the company's legal person and the limited liability of the shareholders and evade debt,seriously damaging the interest of company's creditors.it shall be jointly and severally liable for the company's debt." The formulation of this clause is an innovation of our country.It is also the first time China has written the system of disregard of corporate personality into Company Law.However,this regulation imposes restrictions on the actors of disregard of corporate personality and the subject of liability,ie,it is limited to company's shareholders.Therefore,the applicable limitations of this article are more obvious.In practice,more and more non-corporate shareholders abuse the independent personality of corporate legal persons,and cases of serious damage to the interests of corporate creditors occur from time to time.In the guidance case No.15 of 2013 of the Supreme People's Court,it was confirmed that the related company constitutes a commingling of corporate personality,that is,the personnel,business,and financial aspects of the related companies are overlapped or confused,which in turn leads to indistinguishability of their respective assets,that is,loss of the company's independent personality.Commingling of corporate personality is supplement to disregard of corporate personality,However,in the law,there is no clear definition of commingling of corporate personality,the subject of responsibility,and the way to bear the responsibility.How to correctly apply the law to resolve such disputes has become a referee problem.This article begins with the origin of the system of disregard of corporate personality,the background of the introduction of the system in our country and the current status of implementation of the system in China.It points out that the current system of disregard of personality does not meet the new problems in practice.The need for commingling of corporate personality is urgently needed as a supplement.Then it discusses an actual case of suspected commingling of corporate personality.Through the discussion of different opinions of judges and referees,it is pointed out that the lack of clear legal regulation of commingling of corporate personality in the current law has led to referees having different views on such issues and making it difficult to make judgments.The need for urgently needed new solutions.Through empirical research and analysis,the concept of disregard of corporate personality and commingling of corporate personality is summarized,and the attributes of infringement are pointed out.Then,bring disregard of corporate personality and commingling of corporate personality in Infringement requirements.After a comparison,whether it is disregard of corporate personality or commingling of corporate personality,breaking through the relativity of the debt of the contract,in addition to the responsibility of the contract counterparty,the company also adds an abuser to jointly assume joint and several liability.The abuser who abuse the independent personality of the company legal person seriously damaging the interests of the company's creditor and therefore must bear responsibility for it.This is a manifestation of the specific application of the tort theory in company law.This article is based on this,from the perspective of infringement behavior,compares the corporate personality disregarding system with the commingling of corporate personality system and seeks the common ground,and on this basis,creatively puts forward the theory of “Big Commingling of Corporate Personality”.The theory holds that all the phenomena that cause serious damage to the interested parties due to the abuse of the legal person's independent status belong to the category of “Big Commingling of Corporate Personality”.The abusers and the abused persons should bear the joint responsibility for the damages of the interested parties.At the same time,this article elaborates on the constituent elements,classification,and application of “Big Commingling of Corporate Personality”,striving to unify the denial of personality and personality through the theory of “Big Commingling of Corporate Personality”,and provide a theoretical basis for the formulation of relevant statutes and resolve the current law.The lack of regulation of related issues will make it possible to follow such issues in the future.