| Unveil the company veil plays an important role in safeguarding the company’s personality independence.However,the main legal norms of the Unveil the company veil in China still remain in the Company Law of the People’s Republic of Ch ina(hereinafter referred to as Company Law).Ten articles,so that the courts at all levels face the case of the denial of the personality of the affiliated company and cannot find a suitable basis for the application of the law.The academic and practical circles a lso have different opinions on the handling of such cases,mainly including three aspects: 1.How to deny the personality of the affiliated company to apply the third paragraph of Article 20 of the Company Law;2.The personality of the affiliated company denies the distribution of the burden of proof to the plaintiff or the defendant;3.Whether the actual controller behind the affiliated company is responsible.Through the comparison of scholars’ opinions and court opinions and sample case analysis,the case of deny of personal belongings of affiliated companies does not meet the conditions applicable to the third paragraph of Article 20 of the Company Law.The object of the clauses is that the shareholders do not include affiliates and adopt expansion.The interpretation is beyond the scope of the text,and the behavior of the company’s personality is the same as that stipulated in Article 20,paragraph 3 of the Company Law.The Supreme People’s Court issued the No.15 guidance case in 2013,and the people’s courts at all levels should refer to the trial.For such cases,the third paragraph of Article 20 of the Company Law shall be referred to.Secondly,the distribution of the burden of proof should not be completely borne by the plaintiff.The empirical data shows that 25 of the 37 cases that have not been denied by the courts can not ultimately bear the result of the loss because of the evidence.The original defendant’s ability to prove the company’s personality is wrong.In particular,it is difficult for the natural person plaintiff to prove the evidence,especially for the defendant’s affiliated company’s property mix and operation.Therefore,the plaintiff only needs to bear the preliminary burden of proof on the facts of the mixed facts,and prove that the company being traded has the possibility of confusing the individual.After the court has formed a conviction,the further burden of proof will be distributed to the respondent affiliated company,and the associated company will be proved.The company does not constitute a mixed personality,otherwise it bears adverse consequences.Finally,the actual controller behind the affiliated company has the obligation to be trusted.It is the actual controlling dominator behind the company’s behavior.Its will is the most important force affecting the company’s decision-making.It should bear joint responsibility for the debt of the related company.At present,there is no legal norm that regulates the denial of personality of affiliated companies.However,the current judicial practice and theoretical circles have been arguing over the handling of such cases.Although there are 15 guiding cases for reference,as a statute country,it should be introduced to the case of the company’s personality conflation.Relevant judicial interpretations,with a view to reducing disputes,unifying the court’s refereeing standards,and achieving the same judgment. |
