As everyone knows, the statutory capital system requires the name of the company capital and physical capital is consistent, but also require the shareholder equity holdings to nominal and actual contribution consistent. Obviously, the "bridge loan" will not only lead to the difference between the name of the company capital and physical capital, but also will lead to the difference between the nominal and real equity shareholders equity, which deviates from the statutory capital system and the paid in capital requirements of the system. We believe that, with "across the bridge loan" shareholder capital contribution, the subjective aims to engage in business qualification in the name of the company, rather than in accordance with the investment amount or percentage bear the investment risk, investment income. Accordingly, should be identified by the "bridge loan" shareholders have nominal shareholder identity without substantial shareholder identity. That there are three meanings: first, not shareholders shall continue to undertake the obligation of capital contribution, avoid shareholders took the opportunity to escape the obligation of capital contribution; secondly, not shareholders lost profit distribution rights; thirdly, according to the company creditors subrogation directly to shareholders put forward without recourse to implement the law, company law to protect creditors (see forest Wang Shihua: "the company, the legal capital system review", "law" set in 2005 third).

 Obviously the positive role of corporate personality system, but the abuse of corporate personality system and limited liability of shareholders is the spread of the phenomenon, serious damage to the company creditor and social public interests. The revised company law the company personality denial system or rule of piercing the corporate veil into our law, has important milepost significance to perfect construction system of company law of our country, undoubtedly have important influence on China's civil legislation and civil and commercial trial.

 Shareholder litigation is an important part of the legal system, the revised Company Law provisions of the shareholders limited liability company and Limited by Share Ltd, and shareholder litigation to shareholder direct action and shareholder direct litigation, as the basic content of the comprehensive start, which improve the lawful rights and interests of shareholders and the social public interests protection system is very necessary.

 Three, the company personality denial system or rule of piercing the corporate veil

 Companies act twentieth provisions of the third paragraph of the revised: "the shareholders abuse the independent status of the company legal person and the limited liability of shareholders, debt evasion, serious harm to the interests of the creditors of the company, it shall bear joint and several liability for the debts of the company." This is the important embodiment of company personality denial system or rule of piercing the corporate veil into our law, undoubtedly have important influence on China's civil legislation and civil and commercial trial.

 Company law in the form of law to give the company with independent personality, this is the commodity to a certain stage of the inevitable result of economic development, there is also the prerequisite of market economy. The implementation of the company independent personality, means that the company is independent of the shareholder, become an independent subject in the name and property and civil activities of their own and bear civil liability. Its direct consequence is led to the separation of ownership and management, investment property and the property of the company, shareholders in the companies enjoy the profit benefit right at the same time, only by its investment bear the liability for the debts of the company. Therefore, the independent legal personality and limited liability shareholders, is the construction of the two cornerstones of the Modern Corporation, the combination makes the Modern Corporation investors realized profit as much as possible to reduce the risk in the premise of desire, stimulate people generally agree on the form of company. However, the actual effect of independent personality and the limited liability of economic order is like a double-edged sword, not only provides the umbrella to forge ahead, but also as a deceitful fraud. Once the independent personality and limited liability company is sufficient to abuse, the corporate veil from the legal partition between shareholders and creditors of the company contact, covering the shareholders of the company management in the position difference, which will result in the social and public interests, the interests of creditors and other interested parties to damage the interests of. Therefore, in order to America on behalf of the common law countries case form first proposed the company personality denial system, the implementation of rule of piercing the corporate veil, and had been for most countries to accept. Since the implementation of the company system of our country, obviously positive effect of company legal personality system, but the abuse of corporate personality system and limited liability of shareholders phenomenon is spreading quickly, serious damage to the interests of creditors and social public interests. In order to rectify the order of the market economy, the State Council promulgated the "notice", many of the relevant departments of the State Council formulate released a lot of normative documents, the Supreme People's court has introduced a number of provisions, approvals and judicial interpretation, the abuse of company, escaping the obligation of the contract, the abuse of corporate personality phenomenon provides legal basis. At the same time, legislation, law enforcement, judicial idea change, from the beginning of absolute maintain independent personality of the company, to the limited requirements of shareholders bear some responsibility for the debts of the company. But the civil law of our country has not introduced into the company personality denial system or rule of piercing the corporate veil, to a certain extent, affected the healthy development of the company system. The revised Company Law stipulates this important system and rules, it has an important milepost significance for perfecting the system of company law in china.

 As a result of a variety of practice the shareholders abuse the corporate personality situation varied and quite subtle, applicable conditions and occasions so in the form of legislation to fix the disregard of corporate personality theory, has been far beyond the capability of the legislators, even in stressed as is also the case grammar and logic of the legal system of civil law countries. Therefore, the people's court according to the law concept of fairness and justice, only to judge a specific case, and on the basis of good faith, good customs and the prohibition of abuse of right, the basic principle of civil law, the value target of this system rules of fair, justice in individual cases, so as to better reflect the essence of disregard of corporate personality system. Article twentieth of the company law revised is an equitable norms, reflecting the fuzzy and complementary quality principle, applicable standards, make no denial or rule of piercing the corporate veil of corporation personality makes clear a regulation, set aside "system interface for subsequent judicial interpretations of the Supreme People's court". We think, according to the judicial practice in China, with reference to the international practice, the specific application of the rules, the main consideration should be given to the elements of the three aspects, and pay attention to several problems of understanding.

 (a) the main elements

 The main elements include two aspects: the plaintiff and the defendant the plaintiff because of company law personality abuse damaged and have the right to file application of disregard of corporate personality system action litigants; the defendant is the abuse of corporate personality.

 On the plaintiff, can only be harmed by the abuse of shareholders of the company creditors, including natural person, legal person or other organization. Although the judicial practice often have a shareholder of the company or companies for some interest and appeal court opened the company veil situation, but it should be strictly prohibited, namely the company itself and the shareholders of the company can not be the plaintiff. The reason is that: the company, ask the company filed the disregard of corporate personality, it means that the company claims he is not "people", both from jurisprudence or logic are difficult to accept. It shareholders, the company independent personality and limited liability of shareholders, the shareholders become the biggest beneficiary. At the same time, does not exclude the company system the requirements such as company tax and other legal burden, or even do not rule out the company at the shareholders to adverse environment. However, the value goal of fairness, justice, legal system, since shareholders choose operate in a company, shareholders must enjoy the company system benefits at the same time, bear the corresponding burden, accept the company as an independent legal subject all the legal consequences, including the consequences of its negative, but not for individual shareholders interests advocate the disregard of corporate personality system applicable to eliminate the adverse consequences. Therefore, harmed by illegal behavior of controlling shareholder in the medium and small shareholders, which can be directly to the controlling shareholders against the interests of the mention of assumpsit, and not a piercing the corporate veil of action, and not a corporate veil between the shareholders and the shareholders.

 The controlling shareholders, should be positive only in the implementation of the abuse of corporate personality and the limited liability of shareholders behavior. First of all, the shareholders must be substantial control ability of the company's shareholders, the controlling shareholders or controlling shareholders. Controlling shareholder does not necessarily have to be a majority stake in the company, and should be based on the actual control of the company as a token. People in a company (including the family company, small company and wholly state-owned company) or the parent company (a subsidiary to the parent company to maintain a high degree of control over the situation), the controlling shareholders over control of the company was one of the most obvious.

 Secondly, the controlling shareholders must be active shareholders, who are not as a passive shareholder rights that did not participate in the company management or have the right to participate in the company management but are unable or unwilling to participate in the company management shareholders, should not therefore be implicated, the limited liability is recognized and protected by law. Finally, the board of directors, managers or other senior staff may also take advantage of their positions and the abuse of corporate personality, the transfer of risk to the company, damage the interests of creditors of the company, to seek their own interests; but the company directors, managers and other senior management personnel can not be accused, only according to the articles of association of the company and relevant provisions of the responsibility of company law for the board of directors, manager. Because of the different identity will involve different responsibility, therefore, despite the fact that the directors, managers or other senior staff are usually appointed by the shareholders of the company, but the courts must be an identity dominant shareholders and directors or managers from the dominant shareholders, only on the identity of the abuse of corporate personality, it may due to meet the applicable elements and piercing the corporate veil, straight cable company behind the dominant shareholder responsibility.

 (two) the behavior factor

 The implementation of the corporate personality abuse of corporate personality and shareholder limited liability act, is the application of disregard of corporate personality behavior element system. The abuse behavior mainly include two types: the company law personality to avoid the contract or legal obligations, as well as the skeleton of the behavior of corporate personality.

 First, the company law personality to avoid the contract obligation and legal obligation. Among them, the abuse of company personality evade the obligation of act mainly as follows: responsible for the prohibition of business strife contract specific not as obligations of the parties to avoid the obligations and the establishment of new companies, or the use of the old company to conceal their true behavior; have transactions huge debt company controlling shareholders by withdrawing funds or dissolution of the company or to declare the company bankrupt, the place of business, the board of directors, company staff to set up a new company to complete the same, not to achieve the purpose of escape debt originally company; the company to the creditors to escape the obligation of contract fraud. Abusing the company personality evade legal obligations mainly as follows: the controlling shareholder of the new company or by the existing company legal personality, changed for the premise of the mandatory legal norms, the real purpose is to avoid the legal obligations, so that the purpose and effectiveness of the legal norms of the lost. For example, the huge compensation to prevent illegal behavior may result in the company's business, the integration of enterprise property belonging to the establishment of decentralized several companies, so that each company assets only to legal lowest standard, and only the minimum amount of insurance, so it is difficult to compensate for the losses; or use the company to avoid tax liability, social insurance liability or other statutory obligations.

 Second, the formalization of the behavior of corporate personality. The formalization of corporate personality actually refers to completely confused with company shareholders, the company became another self shareholders or another company, or become the agency and the tool, so that formed shareholder, company, company shareholder case (see Zhu Ciyun: "the principle of disregard of corporate personality requirements" ", contained in China law", 1998 fifth).

 Generally speaking, an important characterization of formalization is the company personality, property, business is confused.

 The confusion of personality, there is no strict separation between finger between the company and the shareholder or the company and other companies. Company practice, a set of troops, two brands, a company is the individual are personality confusion situation.

 When the members of the company's property can not be with the company and other company assets as a clear distinction, that is the property confusion. This has completely deviated from the principle of the separation of property, can easily lead to conceal, the property of the company or shareholder who illegally transfer, diversion. Hotchpot Changbiaoxianwei: the main equipment and the shareholders of the company place of business, the place of business or residence completely the same, the company and shareholders use the same office facilities; the company and shareholders' capital or other property of mixed, company capital or property transferred to non company; company and shareholder or a company and another company interests integration, so that the shareholders themselves can be profitable as her own property, free calls, or into their personal property, or into another company. It is because of the property confusion cannot Surety Company to carry out capital and capital maintenance of the same principles, which affects the material basis of company undertakes to pay off the debts, so the property confusion is the people's Court opened the company veil when want to focus on the content of the study. As to whether the only company accounts confusion can disregard of corporate personality should apply, as the case may be, if the accounts are in disorder did not cause the mixing property and company members and other company assets, it can not be applied.

 Business activities between the company and the shareholders especially between companies within the group, the more common. For example, between the company and the shareholders or different companies engaged in the same activities; specific transactions are not separate, but by the shareholders with a control or a board of directors, command, control group; group of Companies in the implementation of a large number of transactions, transaction, transaction type, transaction price and so on, the overall interests of the mother need a company or group as a standard, no independent, free competition, capital in company between the free flowing of the business activities; no authentic records or continuous recording etc.. The above is enough to make the appearance almost lose the independence between the company and the shareholders or parent, sister company.

 In addition, in the action element, whether on the abuse of shareholders of the need to have the subjective standard, there has been a subjective and objective abuse on abuse of battle. Subjective abuse theory holds that, in order to ensure the stability of law, to prevent the disregard of corporate personality is abused, the controlling shareholders abuse the subjective intention is the subjective objective elements must be determined, legal person is the company behind the user must have the illegal or improper purpose. The objective of abuse of the thought, emphasizing the subjective condition does not conform to the needs of society, but also leads to the difficulties of proof aggrieved creditors (see Zhu Ciyun: "the theory of disregard of corporate personality requirements", contained in the "Chinese law", 1998 fifth). We think, in disregard of corporate personality system background and rules, the actual operation and function point of view, the system of rules is equitable features strong. The essence of disregard of corporate personality system is through the method of balancing of interests due to the company law personality is abused and the imbalance of the interest adjustment system, in order to achieve the value goal of maintaining corporate system of fairness, justice, reflects the judicial power an intervention of corporate autonomy, it reflects the interests of the measure. In view of article twentieth of the company law revised does not specify the improper purpose or illegal use of corporate personality must have malicious in the subjective intention, therefore, to truly reflect the spirit of law "Prohibition of abuse of rights, and reduce the abuse of corporate personality objective evidence difficult, the people's court in disregard of corporate personality action should not be too much emphasizes the subjective elements of the abuse of rights.

   (three) the elements

 Results element refers to the use of corporate personality abuse of corporate personality must cause harm to others or society. For the conditions, should grasp the three points: first, the abuse of corporate personality have caused serious damage to the creditors of the company. If the shareholders against the company law personality independence and limited liability of shareholders purpose, but did not cause any damage to the interests of creditors, did not affect the balance of interests of the system, it can not be applied the system of disregard of corporate personality to correct the imbalance of interests is not. Secondly, there is a direct causal relationship between abuse of corporate personality and losses (see [day] my wife Rong: "a new set of general principles of the civil law", Iwanami shoten, thirty-fifth pages). The injured party must be a causal relationship between the burden of proof to prove that the improper behavior, personality by damage and abuse of company law otherwise, cannot draw the denial of corporate personality to court litigation request. Thirdly, the damage can not be compensated by the company itself. That is to say, even if the controlling shareholders abuse the corporate personality and the limited liability of shareholders to achieve its improper purpose, and to the company creditors damage, but as long as the company has enough wealth to make up for losses on creditors, the creditors could not lift the corporate veil v..

 (four) pay attention to the problem

 Although the revised company law the provisions of the company personality denial system or rule of piercing the corporate veil, but should realize, in relation to the company independent personality system and the disregard of corporate personality system, the former belongs to the dominant rules based, the only exception is applied to specific situations and the specific reasons. The specific scope of judicial interpretation in the provisions of the company personality denial system and application requirements, should be more specific and clear. The people's courts must adhere to the standards, in accordance with the law, a careful balance, prudent and applicable in the trial practice, to prevent abuse. Does not fully comply with the applicable conditions, must not be applicable legal personality negative system. Otherwise, not only will cause the entire firm legal person system is in an unstable state, but also against the original meaning of legislation created the disregard of corporate personality system, thereby seriously detract from the independence of corporate personality system value, influence the stability and development of social economy. Therefore, the people's court in the application of corporate personality denial system, should pay attention to the following points:

 First, pay attention to the way, to avoid improper. Based on the must have these three basic elements, but also pay attention to consider the difference and skill specific application, to avoid undue influence on the company legal person system. In the countries of Anglo American law, the shareholders abuse the control power to avoid their own responsibility to more and more circuitous, Court opened the company veil method are also considering different cases the plaintiff's demand, in order to achieve true fairness and justice. To USA law of "Deep Rock Doctrine" (DeepRock Doctrine) as an example, the parent company to abuse the independent personality of the subsidiary company case, the court from the fair principle, the demand of economic efficiency, it is necessary to protect the interests of other creditors of the subsidiary company, the parent company of rationality but also take into account the creditor's rights, reserved in the open the corporate veil thoroughly, namely, unless the subsidiary of a serious shortage of capital or the parent company has fraud misconduct must deny the parent company's creditor, creditor's rights should be in the parent company to subsidiaries of other creditors and preferred shareholders get paid (see Zhu Ciyun: "Disregard of corporate personality in parent subsidiary corporation in the use of", contained in the "science of law", 1998 fifth). Visible, "Deep Rock Doctrine" is neither negative control of the company or the Hypotaxis company qualification of independent legal person, also did not deny the controlling company also have Hypotaxis company creditor status, only after the controlling shareholder creditor's rights assignment order on other creditors and preferred shareholders, in order to protect the other creditors and preferred shareholders to. These practices are worthy of reference.

 Second, restrictions apply, is strictly prohibited to expand. In the judicial practice, is strictly prohibited for expansive interpretation of piercing the corporate veil of judgment in a particular case should be, can not be expanded application of "piercing the corporate veil" rule. Strictly prohibit others "aggrieved creditors outside of piercing the corporate veil"; strictly prohibited the use of "piercing the corporate veil" for people other than controlling shareholder responsibility; degree of control is strictly prohibited in the parent subsidiary company did not reach over, causing no actual loss or loss is not a subsidiary company cannot make up for the case of "piercing the corporate veil" and so on over control. At the same time, the rules should be applied only to the trial procedure, cannot be extended to such as executive or administrative enforcement procedures, shall not apply to the arbitration procedure, reduce the phenomenon of expansion of res judicata. Only in this case, to deny personality, but to enhance the company's overall reputation effect. If the expansion to other than trial procedure, company personality face different organs examined, easy in practice abuse veto, have the order reversed the situation, shake and weakening of independent personality and the limited liability of shareholders.

 Third, tracking guidance, step by step for the record. Although the revised Company Law of piercing the corporate veil rule principle and simple, but the actual content of the rules is very complicated, to truly scientific and reasonable use of the rules, must be combined with the actual characteristics of our company, for long time accumulation and summarization, according to different characteristics of the case by the people's court the superior tracking guidance, explore the applicable rules out the corporate personality negation system with Chinese conditions. Considering that the people's courts at all levels may need to open the company veil cases in judicial practice, the judge discretion between the results difficult to grasp, therefore, suggested methods applicable unveiled rules case record to the high court or the Supreme Court, so that a court to judicial practice all over the problems and experience, timely sum up, exchange information, modify or improve the content of judicial interpretation.

 Four, company shareholder litigation system

 Shareholder litigation is an important part of corporate law system, according to different litigation, shareholder litigation is divided into two kinds: one kind is purely in order to maintain their own legitimate interests of shareholders and to lift the company or other people's litigation that the direct action; another is the indirect litigation and litigation to protect the interests of the company. The revised Company Law Article twenty-second, article 152nd, article 153rd, respectively specified the shareholders limited liability company and Limited by Share Ltd, and shareholder litigation system to shareholder direct action and shareholder direct litigation, as the basic content of the comprehensive start, it is necessary to perfect the legitimate rights and interests of the shareholders and the public interest protection system. In view of the present actual conditions of our country, should encourage shareholders to exercise the right to appeal, a pressing matter of the moment is to solve the following three problems:

 (a) shareholder litigation eligible parties

 1, the qualified plaintiff problem. Shareholder identity is a necessary condition for shareholders to exercise their right to appeal. Article 153rd of the company law, the provisions of the revised, direct litigation the plaintiff can be any shareholder of the company and the company; in the first paragraph 152nd of the indirect litigation as a plaintiff shareholders make holding period and ownership restrictions, namely indirect litigation the plaintiff must be shareholder, Limited by Share Ltd limited liability company for more than 180 days alone or in together hold one percent or more shares of the company. Make appropriate restrictions on the plaintiff qualification of the reason is that: although indirect litigation is an effective way to safeguard their own rights and interests of small shareholders, but because of the contradiction between shareholders disagreement or shareholders of local interest and the overall interests of the company and other factors, may cause unnecessary litigation burden. In order to maintain the normal operation of the company, it is necessary to hold a deadline to the plaintiff shareholders and shareholding limits. Among them, limit the shareholding period, to prevent the abuse of representative litigation system and the purchase or transfer of the shares; on the proportion of shareholding requirements, to ensure the plaintiff shareholder representative lawsuit filed with a certain degree of indirect.

 2, the defendant problem. In direct action, according to the provisions of the company law revised in paragraph 153rd, direct action directors, supervisors, the formation of personal behavior of senior management personnel in performing their duties in violation of laws, administrative regulations or the company's articles of association, the individual as the defendant. According to the provisions of the company law in twenty-second, shareholders, the general meeting of shareholders, board of directors, voting procedure procedural flaws or the resolution is in violation of laws, administrative regulations of the occasion, because the subject of tort has become the company, so the company should be the direct defendant.

 In the indirect action, in order to protect the legitimate rights and interests of shareholders, the second and third paragraphs of this article 152nd provisions of the company law of the indirect lawsuit defendant relatively broad, including company directors, supervisors, controlling shareholders, including senior management personnel within the company, including the third person outside the company. Such provisions, as appropriate. Indirect action since the shareholder representative litigation, then the right belongs to the company, in accordance with legal procedures and conditions, right of shareholders can exercise the company on behalf of the company. This can not only prevent and remedy the organs of company staff abuse of power, but also can prevent and eliminate infringement of third people to the company.

 3, the legal status of the company and other shareholders. In the indirect lawsuit, the legal status of the company and other shareholders is a cause for concern and consider the problem. Embodied: other shareholders may participate in the suit? Does the company must participate in the proceedings? If the company to participate in the proceedings, the legal status of?

 Then filed shareholder indirect litigation, and litigation and the other shareholders' interests are closely related, other shareholders in the indirect lawsuit and the plaintiff shareholder in the same position position naturally become an important problem of indirect litigation system, but the revised Company Law on this not clearly stipulated. Indirect shareholder litigation in the American, other shareholders without charge equal to group action in the group members. The law does not prohibit the other shareholders to participate in the litigation, but in group litigation rules, by the judge in the consideration of the cost and efficiency of litigation cases, decide whether to allow the other shareholders to participate in the proceedings; but when the application procedure in the interests of the applicant has by now give the parties represented, are not allowed to participate in the proceedings. Indirect shareholder litigation in Japan, the plaintiff shareholders by the prosecution, other shareholders shall not on the same subject matter of litigation and litigation, but in order to prevent the plaintiff and the defendant director conspiracy intentionally lost profits from the Japanese commercial code, "" 268th section second allows other shareholders to participate in the shareholder lawsuit. However, because of the delays in the proceedings in the court or not properly heavier burden significantly, the limit. Our shareholder indirect procedure, we think, before the first hearing, if there are other shareholders to participate in the shareholder's representative action, shall be permitted, because this can make shareholder representative litigation risk sharing, the plaintiff, also help to find out the facts. After the first trial, the court should not normally be allowed to join the lawsuit because of other shareholders, shareholders indirectly result relates to the plaintiff shareholders and other shareholders of public interests litigation, and the other shareholders have the res judicata, among all the shareholders of the company is not necessary joint litigants, other shareholders of the company whether to participate in the litigation does not affect the trial of the case. So, the people's court should not take the initiative to put it as a co plaintiff, nor it is listed as the third party without independent claim, to avoid increased procedure time unreasonable delay or litigation cost.

 In the shareholder direct litigation, shareholder litigation of subrogation by the company, whether the company will participate in the lawsuit? We believe that, due to indirect shareholder litigation representative and subrogation, in fact the plaintiff shareholders is the company's right of action, so there is no necessary to participate in the litigation of company. But in view of the quality of autonomy of civil litigation by the company independently, can choose whether to participate in the indirect lawsuit. In addition, in emphasizing the autonomy at the same time, can not damage the public interests; if the indirect action if no company participation, will not be able to identify the facts of the case or the plaintiff and the defendant malicious damage to the interests of corporation and other shareholders, company should participate in the proceedings.