Research On The Application Of The Corporate Personality Denial System In Our Country

The promulgation of the company law in 2005 marks the formal establishment of the system of denial of corporate personality in the form of statute law.Before that,although the civil law of our country has not established the system of denial of corporate personality,it has been explored and tried in practice.After the promulgation of the company law,especially with the rapid development of economy,global economic integration and the collectivization of company scale have become a kind of normal.The illegal behaviors of abusing company personality and shareholder's limited liability are becoming more and more diversified and covert.The existing system of denying company personality is difficult to be applied accurately in the specific application due to its too rough lines and the complex and changeable behaviors of abusing power It is impossible to realize the legislative purpose of the system by reasonably determining the responsible person.There are three kinds of theories about the application of corporate personality denial: the traditional theory of corporate personality denial,the theory of reverse puncture and the theory of triangle puncture.From the perspective of application,the three theories have different denial directions and groups.The current law of our country only adopts the traditional theory of the application of personality denial,which has a series of problems,such as the lack of specific application elements,the lack of clear application standards,the single object of the subject of responsibility,the way and scope of responsibility.The big data of "no litigation" platform shows that the application of personality denial system in China is worrying.Therefore,the author draws on the research results of previous scholars at home and abroad,and puts forward some suggestions for the company personality denial system in China.First of all,the existing application theory of corporate personality in China is single,so we should introduce reverse puncture application theory and triangle puncture application theory.The three application theories complement each other,and correctly apply the reasonable distribution of responsibility according to the reality,so as to better play the role of corporate personality denial system.Secondly,there should be corresponding standards in terms of applicable elements: first,in terms of the subject,the plaintiff should include broad corporate creditors,broad shareholders or actual controller creditors,shareholders and companies infringed by the abuse of rights,and the defendant should include shareholders,actual controllers,companies and affiliated companies.Secondly,in the aspect of objective behavior,it is mainly manifested in capital shortage,personality confusion,over control and corporate skeleton.To judge whether the company's capital is significantly insufficient,we need to compare the company's business scale,operational risk and the amount of shareholders' investment.The criterion of judging personality confusion is from two aspects: the existence of the behavior of confusion and the inability to make a reasonable explanation for the behavior of confusion.The criterion of judging excessive control is the result of the improper purpose and the damage to the interests of creditors.The typical manifestation of the company's skeleton is the shell company,whose standard is the loss of independence.Third,in terms of the result element: the result element refers to the result of the damage caused to the creditor.Because the creditor is concerned about whether the creditor's right is paid off,there is no requirement for the causal relationship,the size of the damage and the extent of the damage,as long as the damage result is caused,that is,the debt right can not be paid off.Finally,liability can be divided into bearing mode and bearing scope: Based on the consideration of fairness and justice,the bearing mode is determined as joint and several liability regardless of sequence and size;the bearing scope of liability adheres to the principle of actual loss,and there is an agreement on the expected benefits,otherwise it will not be included in the bearing scope.