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Disregard of Corporate Personality litigation Problems

Author: WangCheng From: www.yourpaper.net Posted: 2010-03-26 01:18:55 Read:
Abstract: China's new "Company Law" is derived from the jurisprudence and our legislative abstraction of theoretical and practical circles for its understanding of different judicial practice, the abuse and misuse of the system. In order to improve the good running of the litigation, as long as the specific public interests are jeopardized, government departments deny the right to bring a complaint on behalf of the public interest. Hearing personality denied that the complaint should implement the "the compromise the burden of proof" rules, non-applicable to civil enforcement proceedings Disregard of Corporate Personality. The nature of the controlling shareholder responsible personality denial should analyze specific issues, should be cautious and combined with the specific national conditions of the system applicable.
Keywords: corporate personality; Corporate Personality Denial System; corporate personality denied the lawsuit

Our new "Company Law" formally introduced Disregard of Corporate Personality specific application problems from either theoretical or practical, is still in the stage for further exploration [1], the main reason for the law is too abstract, refinement judicial The explanation has not been introduced. Therefore, it is necessary to deny the litigation problems of corporate personality system.

Government departments denied the right to bring a lawsuit

In our so-called Corporate Personality Denial (also known as "Denial"), based on a particular subject matter, denied independent corporate personality and limited liability of shareholders in a specific legal relationship, and ordered the shareholders to the creditors of the company or the public interest commitment unlimited liability, in order to stop the abuse of corporate independent personality, to protect the interests of the creditors of the company and public interests, uphold the law fair, the requirements of justice value targets and set a legal system [2]. The Corporate Personality denied to overcome an independent legal personality and the liability of legal persons independent of the drawbacks caused a system of legal redress.
Filed the company and the shareholders can not deny that lawsuit has become a mainstream point of view [3], and the government departments the right to bring deny v. controversy. Opponents argue that a civil legal relations between the creditors of the company and the company and its shareholders, the legal status of equality, creditors Corporate Personality Denial only through a civil action to pursue the joint and several liability of the shareholders [4]. Public interests the abstract public interests and public interests, as long as the specific public interests are harmed, the government departments on behalf of the public interest v. the right to bring deny. When the abuse of corporate personality to shareholders harming the interests of the state, not a civil legal relations between government departments on behalf of the national interest with the Company and its shareholders, government departments can direct liability company by virtue of its executive powers investigated. Therefore, the "Company Law" creditor "includes both classes of creditors in civil relations, including labor relations, creditors should also include claims (such as the national tax claims), special administrative relations. Disregard of Corporate Personality legislation aims to protect the interests of the creditors of the company and the public interest, the protection of the public interest is to protect the common interests of all members of society.
The realization of the public interest is mainly implemented by government departments, such as the independent personality of the company's controlling shareholder tax evasion malicious acts of infringement is not the interests of a particular creditor, but the normal order of taxation of the country, and ultimately the infringement of specific social and public interests. The tax department it is necessary for the maintenance of social and public interests of the appeal the Corporate Personality denied v., People's Court, once it determines that the companies involved corporate veil to cover up the specific behavior of malicious evade taxes, there can be denied in accordance with the requirements of the public interest corporate personality support the tax department in charge of the request, this time the plaintiff should the tax authorities, the law should give it to sue qualifications.
Harming the interests of the state when the abuse of corporate personality to shareholders, government departments directly investigated the company's legal responsibility by virtue of its executive authority, which is an administrative enforcement procedures applicable Personality denied belonging to the judicial process. If government departments on behalf of the public interest is not entitled to bring deny the complaint, when in line the Corporate Personality deny legal conditions, the company's property is insufficient to pay off debts (such as taxes), the executive branch through the statutory procedures for executing the company's property and can not meet claims no rights to the controlling shareholder of the property through the administrative procedures denied personality, abuse of corporate personality that can not be executed directly, the result is harming the interests of the state. If given the plaintiff qualification of administrative departments, denied that the company personality through the judicial process and accountability for the controlling shareholder can adequately protect the public interests of specific social and uphold the law fair and just value target. Should be clear that government departments on behalf of the public interest can only be based on the specific public interest, the right to bring a personality deny the complaint, must not be allowed based on abstract public interest advocate Personality deny. Otherwise, it will lead to personality denies abuse of the system, contrary to the original intention of personality denial system set up.

Hear whether or not to pursue "the burden of proof upside down"

General rules for the allocation of the burden of proof is related to procedural justice scholars advocate Disregard of Corporate Personality litigation should apply to legislative intent, "who advocate who proof" [5]. Some scholars have suggested that special rules should apply "the burden of proof upside down" deny all personality [6]. Disregard of Corporate Personality case hearing, the plaintiff requested the responsibility if still applicable, the shareholders of the abuse of corporate personality "who advocate, who is the burden of proof," the general rule is undesirable. Creditor as the plaintiff with respect to the defendant in a weak position, and, if applicable, the general rules of evidence, increase the burden of proof of costs and litigation risk.
Plaintiffs need to bear the burden of proof on the three elements constitute actionable Disregard of Corporate Personality: First, the main elements of the original defendant, the proper subject; behavior elements, the shareholders of the Company implemented the abuse of corporate personality and limited liability of shareholders; Third, is the result elements, namely the abuse of corporate personality, behavior of the shareholders of the Company caused damage to the plaintiff. The burden of proof on the main elements of the plaintiff is generally no problem, and the focus is difficult to grasp shareholders, creditors direct evidence of control of the Company, the Company's financial condition and is very secluded, the property is impossible to find out is that the burden of proof on the behavior of elements and results elements If these are to require the plaintiff to prove creditors are likely to be lost, because of insufficient evidence and makes them legitimate economic interests are not protected, contrary to the basic principles of fairness and justice. For example, under the guise of the relationship, the company transferred the property more clever creditor proof its difficulties.
In the special provisions of the one-man company, other personality denied uniformly applicable burden of proof inverted "similarly undesirable, because unless shareholders can prove that he did to the implementation of the abuse of personality behavior, or we need to assume unlimited liability, unfair to defendants shareholders, easily lead to the company Personality deny lawsuit abuse, which is equal to from one extreme to the other extreme, the consequences shake the fundamental system of the legal personality independent and shareholder limited liability. The general rule, whether it is "who advocate who proof" or "the burden of proof upside down" special rules do not apply to the general provisions of the Corporate Personality Denial v..
According to deny the particularity of corporate personality, it is recommended that the "the compromise the burden of proof" rules or inverted "to limit the burden of proof rules that take the first objection to the plaintiff to bear the initial burden of proof, once they meet the requirements of the initial burden of proof , the transfer of the burden of proof to the defendant's practice. Specifically, the allocation of the burden of proof on the first plaintiff should cite to cover contingent of evidence to prove the existence of the member misuse of company "personality" behavior and the resulting damage results to prove that the company has a capital significantly less than, the Companies Act Personality Xinghai obvious flaws and damage facts and other abuse of corporate personality, external appearance, operation process, the plaintiff's burden of proof should be to achieve a degree of reasonable doubt, and the judge believed the defendant shareholder more likely to abuse of corporate personality exists. Secondly, by the defendant to prove that there is no abuse of rights, and that proved to own and control the relationship between the company's legitimate corporate personality does not exist Xinghai, no false funded company personnel, finance, business is completely independent company accounts give a true and complete, normal operating conditions, etc., which the defense to the plaintiff's advocate. , Will have to bear the burden of proof can not be the consequences if the defendant the burden of proof can not be ruled out the possibility of its existence Personality abuse. In this way, help to address the abuse of corporate personality "lawsuits reasonable commitment and allocation of the burden of proof.
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