关于中国公司人格否认制度的思考

1、1 关于中国公司人格否认制度的思考关于中国公司人格否认制度的思考 摘摘要要：随着经济与社会的不断发展，滥用公司人格制度的现象也随之出 现并对公司的人格独立的存在价值提出了挑战。我国对公司人格否认制度经过 多年的本土化探索，于 2005 年我国新公司法中以成文法形式明确肯定了该 制度。然而该制度建立之初尚有不足之处，需要采取切实有效的措施，以促进 该制度在我国的进一步的发展。 关键词关键词：公司人格否认制度；公司法；中国 Reflection on Piercing the Corporate Veil System in China Abstract: Currently, the indep

2、endent status of a company is severely challenged by the abuse of corporate personality. Therefore, China, with so many years study and deliberation, finally established the piercing the corporate veil system in the newly-revised 2005 Company Law. However, it, as a new system, still needs to be furt

3、her modified and amended in order to be better applied in China. Key words: Piercing the corporate veil System；Company Law；China 2 CONTENTS Abstract (in Chinese) .1 Abstract (in English).1 1 Introduction.2 2 Evolvement of Piercing the Corporate Veil System.2 2.1 The Case of Salomon v. Salomon Mr. Sa

4、lomon himself was managing director. Mr. Salomon owned 20,001 of the companys 20,007 shares - the remaining six were shared individually between the other six shareholders. Mr. Salomon sold his business to the new corporation for almost 39,000, of which 10,000 was a debt to him. He was thus simultan

5、eously the companys principal shareholder and its principal creditor. When the company went into liquidation, the liquidator argued that the 4 debentures used by Mr. Salomon as security for the debt were invalid, on the grounds of fraud. The judge, Vaughan Williams J. accepted this argument, ruling

6、that since Mr. Salomon had created the company solely to transfer his business to it, the company was in reality his agent and he as principal was liable for debts to unsecured creditors. Afterwards, Mr. Salomon appealed to The Court of Appeal. But the Court of Appeal also ruled against Mr. Salomon,

7、 though on the grounds that Mr. Salomon had abused the privileges of incorporation and limited liability, which the Legislature had intended only to confer on “independent bona fide shareholders, who had a mind and will of their own and were not mere puppets”. The Lords Justices of Appeal variously

8、described the company as a myth and a fiction and said that the incorporation of the business by Mr. Salomon had been a mere scheme to enable him to carry on as before but with limited liability. 2.2 The Concept of Piercing the Corporate Veil System The Company Law concept of piercing the corporate

9、veil describes a legal decision where a shareholder or director of a corporation is held liable for the debts or liabilities of the corporation despite the general principle that shareholders are immune from suits in contract or tort that otherwise would hold only the corporation liable.1 This syste

10、m is also known as “disregarding the corporate personality”(Xu Weidong, 2002: 14). The phrase relies on a metaphor of a “veil” that represents the veneer of formalities and dignities that protect a corporation, which can be pierced at will when the situation warrants looking beyond the “legal fictio

11、n” of a corporate person to the reality of other persons or entities that would otherwise be protected by the corporate fiction. Piercing the corporate veil is not the only means by which a director or officer of a corporation can be held liable for the actions of the corporation. Liability can be e

12、stablished through conventional theories of contract, agency, or tort law. For example, in situations where a director or officer acting on behalf of a corporation personally commits a tort, he and the corporation are jointly liable and it is unnecessary to discuss the issue of piercing the corporat

13、e veil. The doctrine is often used in cases where liability is found, but the corporation is insolvent. 2.3 The Establishment of Piercing the Corporate Veil System in China Prior to 2005, Chinas piercing the corporate veil system was operated in a state of uncertainty. Not until the 1990s, with the

14、rise of the limited liability company as a corporate form in China, did the notion of a corporate veil become important. In 1994, Chinese law formally recognized the limited liability company as “legal persons” with shareholder liability limited to the extent of the shareholders “capital contributio

15、ns” or “shareholdings”. However, the 1994 Company Law did not grant Chinese courts the right to pierce the corporate veil. Nor did any other statute confer such power. As 1 Wekipedia, the free en encyclopedia (2009). Piercing the Corporate Veil online (Updated 19 Mar 2009) Available from: http:/en.w

16、/wiki/Piercing_the_corporate_veil (cited 16 Mar 2009) 5 a result, most Chinese commentators agreed that Chinas law did not include piercing the corporate veil. Despite the absence of an express statute, some Chinese judges implemented the concept informally during this period. For exampl

17、e, in replying to an inquiry made by the High Court of Guangdong province, the Supreme Peoples Court of the Peoples Republic of China implied that veil piercing may be permissible when the actual capital contribution made to a corporation is less than the amount of capital registered under that corp

18、oration. The Supreme Peoples Court has also affirmed a number of lower court decisions that pierced the corporate veil. These cases, however, failed to establish clearly the piercing the corporate veil system for three reasons. First, because China is governed by civil law, cases hold no precedentia

19、l value. Second, the Supreme Peoples Courts own case law suggested a mixed jurisprudence. The court reversed lower court decisions to pierce the corporate veil in cases that were factually similar to cases it affirmed. Finally, piercing the corporate veil occurred in only selected provincial courts.

20、 A uniform principle did not exist across China. This all changed with the 2005 revisions to the Company Law. Article 20 of the law states: “Where any of the shareholders of a company evades the payment of its debts by abusing the independent status of juridical persons or the shareholders limited l

21、iabilities, and thus seriously harms the interest of any creditors, it shall bear joint liabilities for the debts of the company”. In addition, article 64 provides a piercing the corporate veil provision relevant to one-person limited liability company. It states: “If the shareholder of a one-person

22、 limited liability company is unable to prove that the property of the one-person limited liability company is independent from his own property, he shall bear joint liabilities for the debts of the company”. 3 Legal Basis of Piercing the Corporate Veil System Along with the movement of commodity ec

23、onomy, the corporate personality system and the limited liability system, due to their incompetence, could not perform its function as a thoroughly effective Constraint Mechanism to supervise the market economic activities, and thus result in a serial of corporate issues. The piercing the corporate

24、veil system supplements the incompetence of the corporate personality system and makes itself to be the important mechanism of redressing the balances between the shareholder and the creditor. However, the establishment of piercing the corporate veil System needs the theoretic support of the legal j

25、ustice principle, the food faith principle, and the prohibition of rights abuse principle and only with these supports can piercing the corporate veil system fully functions and adjusts itself to the latest judicial construction. (Zhao Deshu, 2004: 151) 3.1 Legal Justice Company, as a commercial ent

26、ity, its ultimate goal is to maximize its interest through its activities. But apart from its ultimate goal, company should drop its social responsibility since it is one member of the society or certain group, though the two are sometimes in conflicts with each other. Meanwhile, there also exists a

27、 contradiction of interest between the shareholder and the creditor in that the two 6 parties both aspire after enjoying the maximum interest with the least risk. To balance the contradiction of companys ultimate goal of maximum interest and its social responsibility, the contradiction of shareholde

28、r and creditor, law makers must set a minimum standard against these contradictions otherwise the contradictions would certainly worsen and therefore lead to the failure of justice. Then, piercing the corporate veil System was established as such minimum standard to balance these contradictions and

29、to supplement the incompetence of the corporate personality system and the limited liability system. The ancient philosopher Aristotle had once divided justice into two types, one is distributive justice and the other is corrective justice. In brief, distributive justice refers to the fulfillment of

30、 justice in distributing rights, powers, responsibilities and liabilities among social members and group members while corrective justice refers to the fulfillment of justice in adjusting the distribution of rights, powers, responsibilities and liabilities in specific conduct or deal.( Richard L. Li

31、ppke, 1999: 149) So the corrective justice is used only when one distributive justice rule is violated. Only when these two types of justices are achieved, can justice be truly called justice. According to Aristotles classification, the corporate personality system and the limited liability system w

32、ould belongs to the category of distributive justice rules while piercing the corporate veil system, the supplement of the aforementioned systems, is most likely fall into the category of corrective justice rules. As the distributive justice rules, the corporate personality system and the limited li

33、ability system reasonably functions through distributing the interest arising from social division of labor and social cooperation, and fulfill a relatively harmonious social order through a balance between efficiency and equity. However, these two systems only guarantees the principle distribution

34、among social members and group members, they do not cover the specific deal or conduct among individuals. That is to say the fulfillment of distributive justice is not necessarily equals to the fulfillment of individual justice. Taking this situation into consideration, the corporate personality sys

35、tem was then created. Besides, the rapid change of society and market economy appeals to the establishment of the corporate personality system, which appears as the corrective justice rules.(Sir Henry Maine, 1959: 15 ) Nevertheless, we should bear in mind that the corporate personality system and th

36、e limited liability system is the foundation, and the corporate personality system functions only to supplement the incompetence of the two fundamental systems. With the above classification, we could distinguish the corporate personality system and the limited liability system from the corporate pe

37、rsonality system. The former covers general situations and is the normal state, and the latter covers only exceptions and is the temporal state. (Yu Zhengping, 2001:313) 3.2 The Good Faith Principle Originally, the good faith is the moral rule was from and shaped by market economic activity. But, wi

38、th a long period of evolvement and change, the civil law has absorbed this moral rule into the civil principles, and makes it becomes the foundation of the modern civil law. The good faith principles main content is about 7 that people shall act in good faith in their market economic activity while

39、pursuing the interest. And of cause the pursuit of interest shall not harm the interest of other people or the society. The good faith principle exerts its influence basically through the redressal and the coordination of the two phases of interest relation. One is the interest relation between the

40、market parties of a company, which means that one partys pursuit of interest shall not harm the other parties interest and the excise of rights shall not intervene in other peoples excise of rights. The other interest relation is the interest relation between the market parties and the third party,

41、the interest relation between the market parties and the society, which means the parties pursuit of interest shall not harm the interest of the third party, or the interest of the society. The good faith principles influence in market economic activities actually reveals that the good faith princip

42、le attach great importance to the balance of the interest between the market parties, the balance of interest between the market parties and the third party, and the balance pf interest between the market parties and the society. Moreover, there is another reason for the good faith to be the legal b

43、asis of the piercing the corporate veil system is that the good faith principle is the fundamental principle dominant to all civil relations. So doubtlessly, the Company Law, which is the special law of civil law, shall also include the good faith principle as its fundamental principle and deeply ba

44、se on it to keep up with the latest judicial construction. 3.3 The Prohibition of Rights Abuse Principle As a matter of fact, the prohibition of rights abuse principle is the subdivision of the good faith principle. And the reason for it to be listed separately is because it not only deepens the goo

45、d faith principle but also presents more detailed content, especially in the field of Company Law. Its main content is to prohibit the abuse of rights. The abuse of rights takes on many forms in Company Law, such as excise one rights with malicious purpose of harming other ones interest; excise ones

46、 rights in pursuit of improper interest and the same. Among these conduct of rights abuse, excise rights deviating from the empowering purpose is the one that is properly the most typical form . Empowering purpose is the purpose for law-makers to enact the law and the expectation of what the law wil

47、l function. So if the empowering purpose is violated, the excise of rights no longer becomes equal and justice. This aforementioned type of rights abuse could be found in the field of Company Law as well. When the shareholder of a company abuses the corporate personality to transfer the risk and the

48、refore harms the interest of the third party or the interest of the society and thus deviates from the empowering purpose of the corporate personality system and the limited liability system, the shareholder should be held liable for the losses and then the corporate veil is pierced. In practice, co

49、untries, like Japan and German, have already applied substantive rules of the prohibition of rights abuse principle in deciding the cases related to pierce the corporate veil, which obviously prove the theoretic value of the prohibition of rights abuse principle in the field of piercing the corporat

50、e veil system. 8 4 Requirements of Piercing the corporate veil The requirements of Piercing the corporate veil is regarded as the framework of the system, not only in field of theory, but also in field of practice, because it directly relates to whether the creditor could successfully claim his obli

51、gatory right and the degree of practicability of piercing the corporate veil system. In applying piercing the corporate veil system, the priority is to confirm the scale or the circumstances that activate piercing the corporate veil System, in other words, is to confirm the requirements of piercing

52、the corporate veil. However, before doing so, we should determine that what civil liability the shareholder assumes in advance. As to this matter, the academic circle has already achieved an agreement that the conduct of abusing shareholder rights and the corporate personality which severely harms t

53、he interest of creditors falls into the category of act of tort, so the shareholder shall assume tortious liability. And it is known that the tortious liability is divided into general tort liability and special tort liability. It is believed that the shareholder of the aforementioned conduct should

54、 assume the general tort liability. Therefore, piercing the corporate veil should include the four requirements of general tort liability, which are action, fault, loss, and casual relation. Since the company is the special law of civil law and due to its own consideration, piercing the corporate ve

55、il should include one more requirement, which is the subject. To sum up, the requirements of piercing the corporate veil includes subject, action, fault, loss, and casual relation. 4.1 Subject The Article 3, Section 20 of Company Law provides that Where the shareholder of a company abuses the rights

56、 of shareholders and thus cause s losses to the company or other shareholders, he shall be liable for compensation acc ording to law. From this provision, we could easily find out that the tort subject of piercing the corporate veil is the shareholder. And the directors and the senior mangers do not

57、 belong to the tort subject, implicating that even the directors and the senior managers harm the interest of the creditor, they would be held as the tort subject of the cases of piercing the corporate veil and therefore would not constitute piercing the corporate veil. In such circumstance, the com

58、pany would usually assume the civil liability firstly, and then the company could prosecute the directors and the senior managers in accordance with articles of association. In deciding the specific case, we should notice that the subject should be the shareholder enjoys a dominant status in company

59、, or has a high control of the company. But that shareholder is not necessarily equal to the one who owns the largest part of company share. In generally, only the dominant shareholder could be held as the subject. The one-person limited liability company, family company, the wholly state-owned comp

60、any, and the subsidiary which is highly controlled by its parent company, are more likely to be misused and to become the tool or agent of the dominant shareholder. Besides, though the directors and the senior managers are also possible to abuse the corporate personality and the limited liability to