An Empirical Study Of The Judicial Determination Of Property Confounding In Corporate Personality Denial

The key to the independence of the company’s personality lies in the independence of property,and when the company’s property and the shareholders’ property are mixed at the same time,the interests of the company’s creditors are in jeopardy,at this point,it is necessary to consider whether the independent personality of the company should be denied or not.How to determine the mixture of assets has become a difficult issue in the denial of corporate legal personality litigation.However,throughout the legislation and research of various countries that deny corporate personality,insufficient attention has been paid to the substantive factor of property confounding.China has also not formed a unified standard for determining the mixed ownership of property,and the occurrence of different judgments in the same case in judicial practice has occurred frequently,which has seriously damaged the credibility of the judiciary and greatly reduced the function of the corporate legal personality denial system.Therefore,it is necessary to study the current judicial determination of property mixing,find out the reasons behind the problem and find solutions.Property mixing reflects the equitable value of the law,the correction of the unbalanced legal system after the fact,and the constraint on the abuse of the current corporate personality and a useful supplement to the independence of the corporate personality.Property confounding is of great significance in the denial of corporate personality,which is the main basis for denying corporate personality and a key factor in implementing the system.There are two different doctrinal meanings of the constituent elements of tangled wealth,namely the subjective abuse theory and the objective abuse theory,or the three-element theory and the four-element theory.Although the subjective abuse theory conforms to the provisions of the legislation,it unreasonably assigns the burden of proof to the creditor;the objective abuse theory seems to be more in line with judicial practice and is conducive to safeguarding the interests of creditors.Through the empirical analysis of 128 cases,it was found that there may be a series of problems in the judicial determination of property mixing,such as different understandings of the constituent elements,vague and unclear ideas for determination,and inconsistent identification standards.There are many small and micro companies in economically developed areas,which are more prone to property mixing.Companies with a small number of shareholders have a simple power structure,lack of constraint mechanisms,and are prone to confusion.In addition,it was found that the court’s reasons for determination mostly focused on the understanding of the constituent elements of property confusion.Among them,the importance of the outcome element is more likely to be ignored by the court;the performance element is more diverse in form,but it does not capture its essence.Given the problems that exist in the judicial definition of the company’s mixed property in theory and practice,three major suggestions have been presented in advance: First,the understanding of the constituent elements of the property mix is unified.Broadening the scope of application of the main elements,clarifying the difference between mixed acts and other similar acts,determining the basis for judging the result elements,and deleting the subjective elements;the second is to optimize the identification ideas.Clear the primary position of the result elements in judicial determination,and other elements as auxiliary judgment basis;the third is to construct judicial determination standards for property mixing.That is,property mixing needs to meet the characteristics of illegality,time continuity,extensiveness of mixed property and degree of severity before denying corporate personality.