公司法人格否认及在我国的立法构想
发布时间：2018-09-08 07:04
【摘要】：公司法人制度是商品经济发展的产物,是现代企业法律制度的典型形态。公司 法人格独立和股东有限责任始终被作为公司法人制度的两大基石,发挥着重要的作 用。但它就象一柄双刃剑,在极大地促进经济发展的同时,也容易成为侵害债权人 及其它相关利害关系人的工具,有违于法律公正、正义的价值目标。作为完善公司 法人制度的重要的设计的公司法人格否认,已为多个国家所适用。本文的结构首先 是对公司法人格的否认做理论上的介绍,然后分析该理论在我国适用的迫切性和必 要性以及在我国的适用范围,最后对公司法人格否认在我国的适用提出了粗浅的设 计。 公司法人格否认,又称“刺破公司面纱”,指为了阻止公司独立人格的滥用,保 护公司债权人和社会公共利益,就特定法律关系中的具体事实,否认公司及其背后 股东的独立人格和股东的有限责任,责令公司的股东对公司债权人和公共利益直接 负责。美国率先设立了公司法人格否认,英、德、日本等国也相继采用,现已形成 较为完善的理论。对公司法人格否认的本质认识逐步深入,对公司法人格否认的成 立要件和类型也有了较为一致的认识。公司法人格否认是在司法判例的基础上发展 起来的,它亦将随着司法实践的发展而不断完善。 在我国,确立公司法人格制度具有重要的意义。我国的公司法人制度是在改革 1 WP=4 开放以后确立起来的,还有许多不完善之处,公司法人格滥用现象严重,诸如虚假 出资,滥设公司,利用母子公司关联企业关系转移资金逃避债务,公司法人漠视其 社会责任等。而且这些现象在社会转轨时期的我国相当普遍。解决这些问题,单纯 依靠我国现有的公司法律是难以奏效的,作为一种法律对策,应该移植西方公司法 律制度中行之有效的公司法人格否认,对我国现行公司法人人格制度进行补充和完 善,解决上述实践中的问题,实现公司法人人格制度原本设计好的公平,正义目标。 我国在司法实践中已开始适用公司法人格否认,但在成文法中并未做出明确规 定。目前,要注重把握民商法中诚实信用原则,禁止权力滥用原则以及公序良俗原 则等基本原则的功能特性,解决公司法人格否认的法律适用问题。作为成文法国家, 我国应以制定法确立公司法人格否认制度,并完善相应的配套法规,完善破产法, 规范公司设立行为,强化出资人违反出资义务的民事责任,建立注册资本担保制度, 加强对公司转投资行为的管理,建立和完善董事注意义务制度,完善上市公司信息 披露制度,加强中介机构的法律责任,加强公司社会责任的立法。由于公司法人格 否认主要是一种事后规制行为,而且其适用要件及适用场合由于多受判例法的约束, 故可能被滥用,为防止滥用,除将一些带有普遍性的问题修订到相关的成文法外, 还应严格把握公司法人格否认的适用要件,并且始终把公平正义的理念作为衡量每 一判例是否恰当的最终标准。
[Abstract]:Corporate legal system is a product of the development of commodity economy and a typical form of modern enterprise legal system.
Independence of corporate personality and limited liability of shareholders have always been regarded as the two cornerstones of the corporate system, playing an important role.
But it is like a double-edged sword, greatly promoting economic development, but also easy to become an infringement creditor
And other relevant stakeholder tools, contrary to the value of legal justice, justice. as a perfect company
The denial of corporate personality, an important design of the legal person system, has been applied in many countries. The structure of this paper begins with
It is a theoretical introduction to the denial of corporate personality, and then analyzes the urgency and necessity of its application in China.
Necessity and the scope of application in China, and finally put forward a superficial assumption about the application of disregard of corporate personality in China.
Plan.
The disregard of corporate personality, also known as "piercing the corporate veil", means to prevent the abuse of the company's independent personality.
Protecting the creditors of the company and the public interest, denying the company and its background in respect of the specific facts in a particular legal relationship
The independent personality of the shareholders and the limited liability of the shareholders order the shareholders of the company to have direct influence on the creditors and public interests of the company
The United States took the lead in establishing the disregard of corporate personality. Britain, Germany, Japan and other countries have adopted it.
A more perfect theory. the essential understanding of the disregard of corporate justice personality gradually deepens, and the achievement of the disregard of corporate justice personality
There is a consensus on the requirements and types of establishment. Disregard of corporate personality develops on the basis of judicial precedents.
It will continue to improve with the development of judicial practice.
In our country, it is of great significance to establish the personality system of company law.
One
WP=4
There are still many imperfections in the establishment after the opening up. The abuse of corporate personality is serious, such as falsehood.
Capital contribution, excessive establishment of a company, and the transfer of funds through the parent-subsidiary affiliated enterprise relationship to evade debts are ignored by the legal person of the company
And these phenomena are quite common in China during the period of social transition. To solve these problems, it is simple
Relying on the existing company law in China is difficult to work. As a legal countermeasure, we should transplant the western company law.
The effective denial of corporate personality in the legal system supplements and completes the current corporate personality system in China
Good, solve the above problems in practice, to achieve the original design of the corporate personality system of fairness, justice.
Our country has begun to apply the disregard of corporate personality in judicial practice, but it has not made clear rules in statute law.
At present, we should pay attention to the principle of good faith, the principle of prohibiting abuse of power and the principle of public order and good custom in civil and commercial law.
Principles and other basic principles of functional characteristics to solve the problem of legal application of corporate personality denial.
China should establish the system of disregard of corporate personality by enacting laws, perfect the corresponding supporting laws and regulations, and perfect the bankruptcy law.
We should standardize the establishment of companies, strengthen the civil liability of investors for violating their obligation to contribute capital, and establish a registered capital guarantee system.
Strengthen the management of corporate reinvestment, establish and improve the directors'duty of care system, and improve the information of listed companies
Disclosure system, strengthen the legal liability of intermediary institutions, strengthen the legislation of corporate social responsibility.
Denial is mainly an act of ex post facto regulation, and its applicable conditions and occasions are often restricted by case law.
It may therefore be abused, in order to prevent abuse, in addition to amending some general issues to the relevant statutory law,
We should also strictly grasp the applicable requirements of disregard of corporate personality, and always take the concept of fairness and justice as a measure of each.
The final criterion of whether a case is appropriate.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D922.291.91
本文编号：2229731
[Abstract]:Corporate legal system is a product of the development of commodity economy and a typical form of modern enterprise legal system.
Independence of corporate personality and limited liability of shareholders have always been regarded as the two cornerstones of the corporate system, playing an important role.
But it is like a double-edged sword, greatly promoting economic development, but also easy to become an infringement creditor
And other relevant stakeholder tools, contrary to the value of legal justice, justice. as a perfect company
The denial of corporate personality, an important design of the legal person system, has been applied in many countries. The structure of this paper begins with
It is a theoretical introduction to the denial of corporate personality, and then analyzes the urgency and necessity of its application in China.
Necessity and the scope of application in China, and finally put forward a superficial assumption about the application of disregard of corporate personality in China.
Plan.
The disregard of corporate personality, also known as "piercing the corporate veil", means to prevent the abuse of the company's independent personality.
Protecting the creditors of the company and the public interest, denying the company and its background in respect of the specific facts in a particular legal relationship
The independent personality of the shareholders and the limited liability of the shareholders order the shareholders of the company to have direct influence on the creditors and public interests of the company
The United States took the lead in establishing the disregard of corporate personality. Britain, Germany, Japan and other countries have adopted it.
A more perfect theory. the essential understanding of the disregard of corporate justice personality gradually deepens, and the achievement of the disregard of corporate justice personality
There is a consensus on the requirements and types of establishment. Disregard of corporate personality develops on the basis of judicial precedents.
It will continue to improve with the development of judicial practice.
In our country, it is of great significance to establish the personality system of company law.
One
WP=4
There are still many imperfections in the establishment after the opening up. The abuse of corporate personality is serious, such as falsehood.
Capital contribution, excessive establishment of a company, and the transfer of funds through the parent-subsidiary affiliated enterprise relationship to evade debts are ignored by the legal person of the company
And these phenomena are quite common in China during the period of social transition. To solve these problems, it is simple
Relying on the existing company law in China is difficult to work. As a legal countermeasure, we should transplant the western company law.
The effective denial of corporate personality in the legal system supplements and completes the current corporate personality system in China
Good, solve the above problems in practice, to achieve the original design of the corporate personality system of fairness, justice.
Our country has begun to apply the disregard of corporate personality in judicial practice, but it has not made clear rules in statute law.
At present, we should pay attention to the principle of good faith, the principle of prohibiting abuse of power and the principle of public order and good custom in civil and commercial law.
Principles and other basic principles of functional characteristics to solve the problem of legal application of corporate personality denial.
China should establish the system of disregard of corporate personality by enacting laws, perfect the corresponding supporting laws and regulations, and perfect the bankruptcy law.
We should standardize the establishment of companies, strengthen the civil liability of investors for violating their obligation to contribute capital, and establish a registered capital guarantee system.
Strengthen the management of corporate reinvestment, establish and improve the directors'duty of care system, and improve the information of listed companies
Disclosure system, strengthen the legal liability of intermediary institutions, strengthen the legislation of corporate social responsibility.
Denial is mainly an act of ex post facto regulation, and its applicable conditions and occasions are often restricted by case law.
It may therefore be abused, in order to prevent abuse, in addition to amending some general issues to the relevant statutory law,
We should also strictly grasp the applicable requirements of disregard of corporate personality, and always take the concept of fairness and justice as a measure of each.
The final criterion of whether a case is appropriate.
【学位授予单位】：华东政法学院
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D922.291.91
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