There are many highlights in the company's modification, which is also the focus of the legal examination, and we analyze them one by one
In this issue, we focus on how to use the legal personality denial system to collect debts.
The 2023 Company Law amends the personality denial rules stipulated in the 2018 Company Law, adding two additional contents to the company: first, "shareholders use two or more companies under their control" to abuse the relevant rules on the independent status of corporate legal persons and the limited liability of shareholders, and respond to shareholders' debt evasion in practice with a horizontal personality denial system. The second is to add a rule on the reversal of the burden of proof for one-person companies.
In reality, there are still many bosses who lack morality will set up multiple horizontal parallel companies, each company is an independent legal person, so it sets a very trap for creditors, and the boss uses the independent status of a legal person to engage in risk traps to avoid debts.
The most fundamental reason for debt evasion is the limited liability of shareholders: shareholders are liable to the company up to the amount of their subscribed capital contributions. Creditors are often saddled with lifelong debts, while debtors can spend their days enjoying life.
In the face of this situation, in judicial practice, there have long been courts in accordance with the jurisprudence of the Company Law to make horizontal joint and several liability determinations, but after all, our country is not a case law country, and the trial is not based on precedents, and the previous precedents are only for reference. After the amendment of the Company Law, it stipulates that "if a shareholder uses two or more companies under his control to carry out the acts specified in the preceding paragraph, each company shall be jointly and severally liable for the debts of either company".
This is how to prove the "denial of legal personality" and break through the general rule that shareholders are not liable for the company's debts based on specific legal facts and legal relationships in specific cases.
Direction of evidence collection: (1) Whether the company has independent intentions and independent property related factual evidence. (2) Evidence that mainly shows whether the property of the company and the property of the shareholders are mixed and cannot be distinguished.
Main forms of expression:
1.Shareholders use the company's funds or property free of charge and do not make financial records;
2.The shareholder uses the company's funds to repay the debts of the shareholders, or provides the company's funds to the affiliated companies for free use without making financial records;
3.The company's account books are not separated from the shareholders' account books, making it impossible to distinguish the company's property from the shareholders' property;
4.There is no distinction between the shareholders' own earnings and the company's profits, resulting in unclear interests of both parties;
5.The company's property is recorded in the name of the shareholder and is in the possession and use of the shareholder;
6.the commingling of the company's business and the shareholder's business;
7.Confusion between the company's employees and shareholders' employees, especially financial personnel;
8.The domicile of the company is mixed with the domicile of the shareholder.
9.Transmission of benefits between parent and subsidiary companies or between subsidiaries;
10.In the case of a transaction between a parent and a subsidiary or between a subsidiary, the gains belong to one party but the losses are borne by the other party;
11.Withdrawing funds from the original company first, and then establishing a company with the same or similar business purpose to evade the debts of the original company;
12.first dissolve the company, and then set up another company with the original company's premises, equipment, personnel, and the same or similar business purposes, to evade the debts of the original company;
13.The fact that the shareholders with significantly insufficient capital to engage in operations beyond their power by using less capital shows that they do not have the sincerity to engage in the operation of the company, and in essence, they maliciously use the independent personality of the company and the limited liability of shareholders to transfer investment risks to creditors.
14.A shareholder uses two or more companies under his control to carry out the above acts.