Huang Jay (senior legal workers, law experts13953240157.Junyeelaw@163.com)

[original] case

Piercing the corporate veil

   In 2004 July A company kraft paper to B company, both sides agreed orally cash on delivery. According to A, about to B value of 30000 yuan of kraft paper. B company after receiving, issuing a $30000 check for transfer to A. The next day, A company holding the cheque payment to bank, because of "insufficient funds, no payment by bank refund". So A to the B collection, B said it did not have the money, money to pay for.AThe company in several times with B company representations without result of two shareholders sued Lee, Zhang, request the court to order the shareholders in B, Lee, Zhang to pay the arrears, and bear joint and several liability.Another check, B company registered as a limited liability company in 1998 May, the registered capital of 500000 yuan, is composed of two shareholders, the shareholders 60% shares of shareholders Li Mouzhan, Zhang accounted for 40% of the shares. In 2005 the company B for failing to conduct by the administrative department for Industry and Commerce shall revoke the business license, closed, now no other property to repay A company.

Analysis.

On the scarlet letter part, according to the legal terms, Lee, Zhang is not suitable, namely the two one at this stage is not qualified defendant. In short.The plaintiff does not pass through the creditor's rights confirmation litigation and non litigation procedures for compulsory liquidation, in "fruitless negotiations" case, straight prosecutionBThe shareholders of the company, is the wrong people.

1, given the case facts: B company is in 1998 May registered as a limited liability company. In 2005 the company by theRevokeBusiness license. According to the "administrative punishment law of the people's Republic of China"Article eighth,The types of administrative punishment:... (five) suspend or revoke the license, temporary suspension or revocation of license. Visible, revoke the license only that B company received administrative punishment, but its ability as an independent legal person qualification and independently bear civil responsibility still exist in the legal level.

Then, according to the "company law" article third the provisions of the preceding two paragraphs: "the company is an enterprise legal person, which has independent legal person property, property rights. Company is liable for its debts with all its property. Shareholders of a company with limited liability subscribed capital contributions shall be responsible for the company." Shareholders in the subscription, is not directly responsible for the debts of the corporation. This is the essence of limited liability. Creation of the shareholder limited liability system, reduce the infinite risk investment, greatly promoting the development of the capital. That about one hundred years ago, USA Colombia University President Nicholas Murray Butler said in a statement: "limited liability company is the largest found in modern times...... Even steam and power is far less than the limited liability company......" He and age, Harvard University President Elliot in eighteenth Century, as "the limited liability...... The most effective legal method." (the above from Manas Tyson: "opened the limited liability company veil", "company law" loaded magazine, Delaware, from 1978 to 1979, 351st pages.) Thus.Limited liabilityAlso known as one of the three pillars of company system. (the other two areThe shareholders and the separation of the propertyAndThe company independent personality)

As the law is a "double-edged sword". It establishes the limited liability, will establish a to prevent abuse of the limited liability privilege creditors or shareholders of the system, this is the case to illustrate the "piercing the corporate veil" (American), "pierce the corporate veil", "Disregard of corporate personality" (Germany, Japan) system. Disregard of corporate personality goal of course is to abuse the company limited liability to shareholders, "said of an empress and directly after the" shareholders. But it has two premises,One must be legitimate companies; two is the only through the court case deny the limited liability of the shareholders. So before finally denied justice personality judgment, must find out the existence of "abuse" limited liability facts. In this case, is mentioned in B company is onlyRevoke(rather thanCancellation) circumstances, the creditor (also can be apply to the court for compulsory liquidation shareholders) presided over, to find out whether the company has solvency (for shareholders is the remaining property available for distribution to shareholders), and the existence of seize company property facts. Of course.Advocates of disregard of corporate creditors must first through a lawsuit, the really is the judgment It goes without saying that the creditors of the company. Otherwise, what about the claim rights directly to shareholders.

The analysis so far, has said more clearly. That is:

(1) A company must first with the relevant evidence, won the first lawsuit, the court shall pay B company A company paid 30000 yuan. (Many people will think I'm money owed, contract, proof of delivery, or even the IOUs, "truth" is clear, also need to sue? Of course. The law on the "fact" that is the so-called "legal fact", not a fact, but after the proceedings evidence can prove the fact that "". Your hand "evidence", not necessarily by the court as the legal meaning of "evidence". If so, due to the loss of the "evidence" to support, the so-called "objective fact" may not have been identified by the court. That the "science" can not win) at this stage, the company still has the qualifications of a legal person, before the check whether the company has independent property, does not have the negative personality condition. So, can not be directly sue the shareholders;

(2) A on the basis of the first lawsuit judgment, B apply to the court for compulsory liquidation of a company. In the case of non litigation cases. In the process of liquidation, shareholders in order to avoid bear joint and several liability for the debts of the company, is likely to cooperate with the liquidation or corporate debt repayment, the liquidation procedure, company or may continue to operate; if for various reasons can not be liquidated, or company meets the conditions of bankruptcy, the court will terminate the liquidation;

(3) third, the judicial interpretation of the provisions of the situation, A has the right on the basis of disregard of the corporate entity law, direct prosecution of shareholders in B, Li, zhang.

[legal]

Provisions of the Supreme People's Court on certain issues in the application of the "PRC Company Law" (two)Eighteenth, the shareholders of limited liability company, the Limited by Share Ltd directors and controlling shareholders not in law

The liquidation group began clearing up within the time limit, caused the company property depreciation, loss, damage or loss, which resulted in the creditors claim that the liability for the debts of the company within the scope of losses, the people's court shall support.
The shareholders of limited liability company, the Limited by Share Ltd directors and controlling shareholders failed to perform its obligations, resulting in major property company, books, and other important documents lost, unable to conduct liquidation, creditor claims the bear joint and several liability for the debts of the company, the people's court shall support.
The reasons caused the actual controllers, creditors claim that the actual controller for the debts of the company shall bear corresponding civil liability, the people's court shall support.
   Nineteenth shareholders of limited liability companies, the Limited by Share Ltd directors and controlling shareholders and actual controllers of the company, after the company dissolution, malicious disposal company property losses caused to the creditor, or without liquidation according to law, the liquidation report to false by the company registration authority for cancellation of registration of the legal person, the creditors claim that bear the corresponding compensation liabilities to the company the debt, the people's court shall support.
  

[Conclusion]

Company rules are a set of human society to business rules (gaming)Compared with the contract system, known as the more complex. Because 49 years later, Chinese, completely eliminated from the Westernization Movement began to introduce the company system, until the early 90's large-scale state-owned Modern Corporation system reform, spanning two generations in 40 years time, no Modern Corporation phenomena and concepts. Modern Corporation is the cell of market economy. Without a healthy cells, the formation of market mechanism is not healthy. It can be asserted, the gap between us and the developed countries in the world to narrow, largely depends on both the concept and the Enterprise Inc can mastery ability, can narrow the gap as soon as possible.

Wrong, please correct me.

                                               2011-11-28 late