Empirical Analysis And Suggestions On The Application Of The System Of Reverse Disregard Of Legal Personality

Since the introduction of the disregard of corporate personality in 2005,the positive disregard of corporate personality has become more mature through the development of judicial practice and theory,but the abuse of corporate personality and shareholder’s limited liability has not disappeared completely.And in the judicial practice,there are also cases such as reverse denial of corporate personality,horizontal denial and so on.Horizontal denial cases have been developed to a certain extent due to the publication of guiding cases,but the development of reverse denial has been stagnant.For example,the above-mentioned judge rejected such adverse denial of a legal person personality on the ground of "no legal basis",applied different judgment standards by courts,different legal grounds,the litigation status of the party to the litigation will be determined,and the interests of the other shareholders of the company will be protected these series of problems need to be sorted out and clarified urgently.Therefore,the author tries to sort out the application and development of reverse denial in our country by combining the existing theoretical research and empirical research,and puts forward some suggestions.This paper is divided into five chapters.The first chapter,through a typical case,points out that reverse disregard of corporate personality is refused to be applied because of "no basis for law" to lead to the problem.Finally,it explains the great theoretical and practical value of reverse denial by summarizing the origin,institutional value and the overall situation of empirical research.The second chapter is the key content of this paper.Among the 86 cases collected by the author,64 judgments refuse to apply the adverse denial of corporate personality,of which 47 judgments clarify that the reason is "without legal basis".Therefore,the second chapter focuses on sorting out the existing theories and practices to get more support,and through horizontal comparison,find out the most suitable method for reverse denial,that is,analogy.The Third Chapter,The Fourth Chapter and The Fifth Chapter are the extension and deepening of The Second Chapter.After determining the legal basis for the application of reverse denial of corporate personality,it is necessary to address some issues,such as how to identify reverse denial,how to provide evidence in the identification,how to allocate responsibilities after the burden of proof is fulfilled,and how to balance shareholders’ creditors and other interested parties with regard to the assumption of responsibilities.This paper holds that the constitutive elements of reverse denial can refer to the constitutive elements of positive denial,namely,Article 10 and Article 11 of Notice by the Supreme People’s Court of Issuing the Minutes of the National Courts’ Civil and Commercial Trial Work Conference.With regard to the burden of proof,this article holds that,first of all,the plaintiff shall provide evidence to prove that the defendant has "abused the independent status of legal person and limited liability of shareholders" and "seriously damaged his rights and interests",and then the burden of proof shall be transferred to the defendant and the defendant shall prove that the plaintiff’s claim is untenable.At last,with regard to the manner of assuming liability in adverse denial,we hold that where the constitutive elements of adverse denial are satisfied,the company shall assume joint and several liability for its shareholders with all its properties,and the joint and several liability in this context is unlimited joint and several liability,without requiring enforcement of the company’s properties after the properties of the shareholders have been enforced.