公司法人格否認及在我國的立法構想
發(fā)布時間：2018-09-08 07:04
【摘要】：公司法人制度是商品經(jīng)濟發(fā)展的產(chǎn)物,是現(xiàn)代企業(yè)法律制度的典型形態(tài)。公司 法人格獨立和股東有限責任始終被作為公司法人制度的兩大基石,發(fā)揮著重要的作 用。但它就象一柄雙刃劍,在極大地促進經(jīng)濟發(fā)展的同時,也容易成為侵害債權人 及其它相關利害關系人的工具,有違于法律公正、正義的價值目標。作為完善公司 法人制度的重要的設計的公司法人格否認,已為多個國家所適用。本文的結(jié)構首先 是對公司法人格的否認做理論上的介紹,然后分析該理論在我國適用的迫切性和必 要性以及在我國的適用范圍,最后對公司法人格否認在我國的適用提出了粗淺的設 計。 公司法人格否認,又稱“刺破公司面紗”,指為了阻止公司獨立人格的濫用,保 護公司債權人和社會公共利益,就特定法律關系中的具體事實,否認公司及其背后 股東的獨立人格和股東的有限責任,責令公司的股東對公司債權人和公共利益直接 負責。美國率先設立了公司法人格否認,英、德、日本等國也相繼采用,現(xiàn)已形成 較為完善的理論。對公司法人格否認的本質(zhì)認識逐步深入,對公司法人格否認的成 立要件和類型也有了較為一致的認識。公司法人格否認是在司法判例的基礎上發(fā)展 起來的,它亦將隨著司法實踐的發(fā)展而不斷完善。 在我國,確立公司法人格制度具有重要的意義。我國的公司法人制度是在改革 1 WP=4 開放以后確立起來的,還有許多不完善之處,公司法人格濫用現(xiàn)象嚴重,諸如虛假 出資,濫設公司,利用母子公司關聯(lián)企業(yè)關系轉(zhuǎn)移資金逃避債務,公司法人漠視其 社會責任等。而且這些現(xiàn)象在社會轉(zhuǎn)軌時期的我國相當普遍。解決這些問題,單純 依靠我國現(xiàn)有的公司法律是難以奏效的,作為一種法律對策,應該移植西方公司法 律制度中行之有效的公司法人格否認,對我國現(xiàn)行公司法人人格制度進行補充和完 善,解決上述實踐中的問題,實現(xiàn)公司法人人格制度原本設計好的公平,正義目標。 我國在司法實踐中已開始適用公司法人格否認,但在成文法中并未做出明確規(guī) 定。目前,要注重把握民商法中誠實信用原則,禁止權力濫用原則以及公序良俗原 則等基本原則的功能特性,解決公司法人格否認的法律適用問題。作為成文法國家, 我國應以制定法確立公司法人格否認制度,并完善相應的配套法規(guī),完善破產(chǎn)法, 規(guī)范公司設立行為,強化出資人違反出資義務的民事責任,建立注冊資本擔保制度, 加強對公司轉(zhuǎn)投資行為的管理,建立和完善董事注意義務制度,完善上市公司信息 披露制度,加強中介機構的法律責任,加強公司社會責任的立法。由于公司法人格 否認主要是一種事后規(guī)制行為,而且其適用要件及適用場合由于多受判例法的約束, 故可能被濫用,為防止濫用,除將一些帶有普遍性的問題修訂到相關的成文法外, 還應嚴格把握公司法人格否認的適用要件,并且始終把公平正義的理念作為衡量每 一判例是否恰當?shù)淖罱K標準。
[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.
【學位授予單位】：華東政法學院
【學位級別】：碩士
【學位授予年份】：2003
【分類號】：D922.291.91
本文編號：2229730
[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.
【學位授予單位】：華東政法學院
【學位級別】：碩士
【學位授予年份】：2003
【分類號】：D922.291.91
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