| With the diversified development of investment forms in market economy,affiliated companies have become a tool for controlling shareholders and actual controllers to abuse the independent status of legal persons to seek benefits and evade debts.In China,due to the lack of legal norms,the academic circles have doubts about the rationality of the application of the corporate personality denial rules among affiliated companies.There are difficulties in the application of the rules in judicial practice.Based on the legal theory and the existing system,this paper analyzes the applicable elements of the rules,standardizes the applicable procedures of the rules,solves the applicable problems of the rules and puts forward some suggestions on the establishment and improvement of the corporate personality denial rules among affiliated companies in China.The first chapter of this paper demonstrates the legitimacy of the application of the corporate personality denial rules among affiliated companies by analyzing the theories and institutional basis within and outside the territory.The first section demonstrates that the application of rules conforms to the legal requirements of fairness,justice and benefit value,the principle of honesty and trustworthiness and corporate social responsibility from the perspective of legal value,legal principles and legal liability.The second section chooses the United States and Germany as the representatives of the two major legal systems,concluding the relevant theories and judicial systems of the piercing corporate veil rules in the United States and the direct liability rules in Germany,which provide support for the theoretical basis of the corporate personality denial rules among affiliated companies in China in the third section,and provide institutional reference for the analysis of the application of the rules in the third chapter.Theoretical research shows that the reverse piercing rules based on another-self theory can be applied to the situation of corporate personality denial among parent-subsidiary affiliated companies in China,and the triangle denial rules based on enterprise whole theory can be applied to the situation of corporate personality denial among sister affiliated companies in China.On the basis of the abuse theory,China has established relevant legal norms for the corporate personality denial rules.Based on the theory of the application of rules,Chinese judicial practice applies the corporate personality denial rules by analogy or directly applies the principle of law to decide the corporate personality denial disputes of affiliated companies.The second chapter analyzes the application status of the corporate personality denial rules among affiliated companies in China by using the typed empirical research method.The first section introduces the guiding case No.15,summarizes the main points of the judgment,analyzes its positive demonstration effect on China’s judicial practice,and points out the application dilemma of the guiding case.The second section selects and sorts out the judicial cases since the release of the guiding case No.15 as the research sample of this paper,and reveals the five practical dilemmas in the application of the corporate personality denial rules among affiliated companies by analyzing the relevant data of the judgment ideas and rules of the sample cases.That is to say,the identification of affiliated companies is not standardized,the applicable standards of rules are not clear,the distribution of burden of proof is unreasonable,the choice of judgment basis is not uniform and the subject of responsibility is doubtful.The third chapter of this paper focuses on the applicable standards and procedures of the corporate personality denial rules among affiliated companies,and puts forward specific suggestions for improvement based on the development status of the rule.The first section determines the applicable standards of the rules from five aspects including the subject factor,the behavior factor,the subjectivity factor,the result factor and the causal relationship factor,based on the theoretical theory demonstrated in the previous article,the Company Law,the Proceedings of the National Judicial Work Conference on Civil and Commercial Matters in 2019,closely following the new rules of the corporate personality denial among affiliated companies established in the Company Law(Revised Draft)and combining sample data and typical cases in sample cases.In general,the responsibility subject are the affiliated companies and its controlling shareholders,actual controllers who implement the behavior of abusing independent legal person status to evade the debt with the subjective malice,causing the loss of solvency of the debt company and the serious damage of creditors’ interests.The second section standardizes the application procedure of the rules and puts forward specific measures from the legal procedure applicable to the corporate personality denial rules among affiliated companies,the pre-procedure of exhaustion of general legal remedies and the rules of burden of proof. |
