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On the Construction of Corporate Personality Denial System

Author: DuYu
Tutor: GuanXiaoFeng
School: China University of Political Science
Course: Civil and Commercial Law
Keywords: Personal independence of the company Denial Legislative Situation Legislative Conception
CLC: D922.291.91
Type: Master's thesis
Year: 2004
Downloads: 361
Quote: 4
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Abstract

In a market economy, if the company is unable to repay the debt, found exist shareholder false capital contribution or withdraws the capital contribution, the ability of creditors to directly to the shareholders of recovery? If you can not recover, obviously unfair to creditors; recovery, how recoveries range ? Based on what? This issue involves an important principle -------- modern company law principles in the specific case of Denial. Law theory, the shareholders invested constitute the legal property of the company, the company can be as independent legal entities bear property responsibility. It is on this basis that we can say that the creditors of the company can only request to the company to settle the amount of their claims, and settled only within the scope of the company's property. This is to deal with the general principles of the company's external relations. However, it is worth noting that as the socio-economic development, when the Corporate Personality of abused and reduced to a tool for shareholders to seek illegal interests, independent personality and limited liability of the company no longer has a positive significance, but damage to the interests of creditors, and thus endanger the normal transaction security and disrupt social order. If they continue to maintain the company's independent personality and limited property liability, in violation of the law value goal ------- fairness, justice; economic goals of the Companies Act established a legal system but also violated ------ - to encourage investment and trading, and the development of a market economy. So in a particular case, some of the countries of the Companies Act in its practice, \This is to deny the principle of the so-called \In China, the company system to establish a long time, but with the economic development, the phenomenon of abuse of corporate personality to evade the obligations and liabilities of the company has grown rapidly spread, and quite common, even in listed companies such phenomena are endless. Reason, shareholder abuse independent personality and limited liability principles rooted: Traditional Corporate Personality system lurks shareholders passed on to the company's external excessive incentives to investment risks and operational risks; second in the Companies Act system compared to the Company's shareholders, creditors of the company at a disadvantage, and usually have no right to intervene in the internal management of the company and that the company's external creditors are difficult to effectively monitor whether the shareholders in compliance with the principle of separation of property of the property of the company and shareholders; Third, the regulation of companies in China The behavior corporate law still many omissions, the shareholders can not form a completely effective legally binding mechanism. The key to solving these problems is to establish a comprehensive and effective system of company law. In the first chapter, the use of empirical method, on the basis of independent visits our corporate personality is abuse of the status quo and to analyze the causes, it is pointed out that the introduction and application of Corporate Personality deny the necessity and urgency of the system. The second chapter discusses the nature of Denial, pointed Disregard of Corporate Personality the company personality independent lt; WP = 5 gt; powerful supplement, and trying to analyze the legal basis for the theory and application of the. Denial applicable elements of the current theoretical circles at home and abroad is no uniform identification standards, I analyzed in the literature on the basis of the study, proposed and proved their point of view. Chapter, combined with the actual situation of China's legislative and judicial, to proposed legislative vision to build our Corporate Personality Denial System: the specific way to deny the establishment of Corporate Personality measures should regulate the content and judicial legislation should pay attention to the issues in a systematic and comprehensive discussion and discourse. First, examine the status of our Corporate Personality legislation to establish the feasibility of Denial System in China's use of written specifications; Construction of Corporate Personality deny the contents of the system and the steps made a more detailed and in The future of the Civil Code, the Companies Act and other laws relating to the content and the terms of the Denial constructive comments, and finally, explore further the establishment and application of Denial System should be noted that the problem in the country, made a brief theoretical. The innovation of this paper are: 1, the system completely Construction of Denial System discussed. 2, the nature and legal basis for Denial System rational thinking and argumentation. The fundamental reason is that the negative corporate personality management shareholders to replace the company will own will, perpetrating a fraud, to achieve their treacherous. Stressed Disregard of Corporate Personality in the country by the company in the form of legislation clearly established, not only in theory, are reasonable, specific legislative operation is possible, therefore, is consistent with the actual situation in the legislative select. This paper argues that: Disregard of Corporate Personality based on its unique legal value, improve the company independent personality and limited liability system has important significance should not be underestimated, and it is adopted by most countries of the Two Schools. In our country, although this theoretical construction and practical operation of the system, there are many other important issues worthy of further discussion, (which is also the starting point of this writing), but the company establish a clear legislative system not only has the economic reality of life need, and theoretically and legislative operations is basically feasible. Early establishment of our company personality denial system, not only to better regulate corporate behavior, and to provide more comprehensive protection for the creditors of the company, but also to the stability of our company organization, coordination of development to provide reliable protection, at the same time through this safeguards to protect the healthy development of the socialist market economy also has important institutional significance.

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CLC: > Political, legal > Legal > Chinese law > Economic Law > Corporate law, company law
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