| The actual controller enjoys the control right over the company and can actually control the company’s behavior.In practice,some actual controllers abuse the independent status of the legal person to harm the interests of creditors.The most important behavior of the actual controller abusing the independent status of the legal person is the mixing of the actual controller and the company personality and transferring the company assets,thus not realizing the creditor’s rights due and damaging the interests of the creditors.In view of the actual controller abusing the independent status of the legal person,the creditors cannot find direct relief ways from the Company Law,and it is difficult to protect their rights.As a concept in the Company Law,the actual controller should be included in the regulatory scope of the Company Law.Combined with the characteristics of the actual controller abusing the independent status of the legal person to damage the interests of creditors,this paper believes that the corporate personality denial rules can be applied to the actual controller.Specifically,the joint and several liability of the actual controller to the creditors is investigated by applying paragraph 3 of Article 20 of the Company Law,so as to improve the liability system of the actual controller to the creditors and achieve the purpose of regulating the control of the company and protecting the interests of the creditors.This paper is divided into three parts:Chapter 1 discusses the basic theory of civil liability of the actual controller abusing the independent status of the legal person.The first section of this chapter first analyzes the definition of the actual controller in the Company Law,summarizes the identification standards of the actual controller in judicial practice,and compares the actual controller with the controlling shareholders and related parties,so as to lay a foundation for the follow-up demonstration of the article.Section 2 analyzes the behavior of the actual controller abusing the independent status of the legal person and its harm,and explains the necessity of investigating the civil liability of the actual controller.Section 3 starts from the basic principles of civil law such as the principle of good faith,demonstrates the legal basis of the actual controller’s liability to the creditor,and finally analyzes the necessity of the actual controller’s liability to the creditor from the practical point of view.Chapter two discusses the deficiency of civil liability system of abusing independent status of legal person and reflects.Section 1 of this chapter,from the provisions of the Company Law and its judicial interpretation,the Minutes of the National Conference on Civil and Commercial Trial of Courts,the Civil Code and other legal systems,Analyzing the imperfection of the civil liability system for the actual controller’s abuse of the independent status of the legal person,Section 2 points out the judicial practice dilemma of the actual controller abusing the independent status of the legal person,Section 3 puts forward the reflection on the application of the corporate personality denial rule by the actual controller,And discusses the legitimacy of the corporate personality denial rule applied to the actual controller,Conclusion:whether from the legal logic or from the practical needs,It is legitimate to apply the corporate personality denial rule to the actual controller.Chapter Ⅲ puts forward the perfect path of the civil liability system of the actual controller abusing the independent status of the legal person.Section 1 proposes to apply the provisions of paragraph 3 of Article 20 of the Company Law by analogy,and bring the behavior of the actual controller abusing the independent status of the legal person to harm the interests of creditors into the regulatory scope of the Company Law.Section 2 expounds the behavioral requirements,subjective requirements and outcome requirements for the actual controller to apply the corporate personality denial rules.Section 3 proposes to correctly grasp the application of the corporate personality denial rules to the actual controller.In terms of litigation,the determination of insolvency affects the prosecution of creditors.In terms of proof,the creditor reverses the burden of proof.The creditor only needs to put forward a preliminary burden of proof,and the main burden of proof is borne by the actual controller,so as to better safeguard the rights and interests of creditors.Finally,it is necessary to be cautious when applying the company personality denial rules.The court shall not actively puncture the company veil and investigate the responsibility of the actual controller behind the company,and adopt the opinions of the company personality,so as to avoid shaking the foundation of the company law. |
