An Empirical Study On The Denial Of Personality Of Husband And Wife Company

According to Forbes’ 2013 "China modern family business" report,the proportion of "husband and wife" enterprises listed on the gem has increased significantly in recent three years,and the relationship between husband and wife is the most important relationship among Chinese family enterprises.Among the684 family enterprises listed in A-share market,314 are husband wife relationship,accounting for 45.9%;among the family enterprises listed in Hong Kong in the mainland,the kinship relationship is relatively simple,and the proportion of "husband and wife shop" is the highest,accounting for 23.29%.Husband and wife company has inherited the advantages of traditional "husband and wife shop" in operation flexibility and rapid change.At the same time,the company’s shareholders only bear limited liability,so it is easy to attract investment,which plays an important role in China’s socialist market economy.In practice,due to the improper exercise of rights by shareholders,there are many disputes in husband and wife company,such as the single shareholder formed by the special identity of shareholders,the high consistency of shareholders’ interests,and the lack of supervision inside and outside the company,which makes the independence of corporate personality controversial and the interests of creditors vulnerable.The personality denial of husband and wife company is interlaced between company law and marriage law Intertextuality is related to the protection of interests balance between husband and wife shareholders and creditors.However,there are different views on the application of personality denial of husband and wife company between academic and practical circles,which results in different judgments in the same case.The summary of the civil and commercial trial meeting of the national court clearly defines the standard for the identification of the abuse of shareholders in the denial of corporate personality.In the identification of the elements of confusion of personality,the financial record is emphasized.However,whether the burden of proof belongs to the creditor or the debtor’s shareholder,how to determine the standard of proof still needs to be considered in the specific judicial practice.There has been a debate on the nature of husband and wife company in the academic and practical circles.When it comes to the problem of disregard of corporate personality,how to determine the applicable standard has become a major problem in judicial practice.Therefore,it is necessary to study the issue of disregard of corporate personality of husband and wife.This paper intends to explore the nature of husband and wife company through theoretical analysis,which is the premise of studying the application of corporate personality denial dispute.Through empirical research on the judicial application of husband and wife company personality denial,let the data and academic dialogue,and finally form a practical applicable standard,in order to provide reference for the academic and practical circles.Based on this,the writing logic of this paper consists of four parts(without introduction)The first part describes the concept of husband and wife company,analyzes the characteristics of husband and wife company,lays the foundation for the identification of the nature of husband and wife company,and then comments on the four popular qualitative views one by one,compares the similarities and differences between one-man company and husband and wife company,and interprets the substantial differences between husband and wife company and one-man company from three dimensions of shareholder’s dominant position,property attribute of capital contribution and community factor.This paper focuses on the analysis of the nature of the shareholders’ contribution of the husband and wife company.From the legal perspective of civil law,economic law,marriage law,comparative law and sociological interpretation,this paper demonstrates the irrationality of the division of property between husband and wife in establishing a company from multiple perspectives,and then explains the lack of theoretical and legal basis for the theory of joint ownership,and concludes that the husband and wife company is a special limited company The article 20 of the company law should be applied to the general principle of disregard of personality of limited company.At last,the paper puts forward the theory of potential co ownership to explain the rationality and reality of husband and wife company.In the second part,the author selects 160 cases involving husband and wife company personality denial from 2013 to July 2020 retrieved from "China judicial document website",and selects them one by one Civil related cases are the empirical research objects.In the form,the relevant data are classified and refined,and various charts are drawn to present them;in content,the focus of dispute,fact finding,judgment reasoning and judgment results of each case are compared and analyzed to seek the commonness and difference of the cases,and reveal the original appearance of judicial application of husband and wife company personality denial dispute.In the third part,we compare the theoretical predictions with the empirical results to explore the theoretical basis.This paper explains the judicial phenomenon of denying the corporate personality of husband and wife by directly applying Article 63 of the company law of the people’s Republic of China on the burden of proof of shareholders’ property in practice,and demonstrates its irrationality.Finally,it clarifies the practical path of disputes over the denial of husband and wife’s corporate personality.The fourth part,starting from the rational choice revealed by practice,combs the practical rules of personality denial of husband and wife company from four dimensions: the determination principle of equity subject strictly according to the results of publicity,the improvement of the standard of proof in special circumstances,the maintenance of universal principle,and the establishment of risk warning system,so as to provide reference for the practical circle and multi angle for the academic circle Research provides valuable perspectives.