1. concept. A legal person refers to a social organization or purposeful property that is established according to law, has the capacity for civil rights and conduct, enjoys civil rights and undertakes civil obligations independently according to law.

2. characteristics. The core issue of the legal person system is to distinguish the personalities of associations and members of associations. Where an association has the status of a legal person, the association and its members are independent persons in civil law. Legal persons and their members are independent in three aspects:

(1) Property independence.

② Independent personality.

③ Responsibility is independent.

As far as the independence of liability is concerned, a legal person bears unlimited liability for its debts with all its property; However, members of the legal person only bear the obligation of capital contribution to the legal person, that is, they indirectly bear limited liability for the debts of the legal person only to the extent of capital contribution. Article 60 of the Civil Law stipulates: "A legal person shall bear civil liability independently with all its property." That is, revealing the purpose.

Second, the denial of legal personality

1, law

① Paragraph 2 of Article 83 of the Civil Code stipulates: "The investor of a profit-making legal person shall not abuse the independent status of the legal person and the limited liability of the investor to harm the interests of the creditors of the legal person. Those who abuse the independent status of a legal person and the limited liability of the investor, evade debts, and seriously harm the interests of legal person creditors shall bear joint and several liability for legal person debts. "

(2) Paragraph 3 of Article 20 of the Company Law stipulates: "If the shareholders of the company abuse the independent status of the company as a legal person and the shareholders' limited liability to evade debts and seriously damage the interests of the company's creditors, they shall be jointly and severally liable for the company's debts."

(3) Article 63 of the Company Law stipulates: "If the shareholders of a one-person limited liability company cannot prove that the company's property is independent of its own property, they shall be jointly and severally liable for the company's debts."

2. Elements and their legal effect

(1) component elements.

① The controlling shareholder (or actual controller) of the company abuses the independent status of legal person and the limited liability of shareholders (such as personality disorder, excessive domination and control, obvious capital shortage, etc.). ).

(2) Causing serious damage to the interests of the company's creditors (mainly because the company's assets are insufficient to pay off the company's creditors' claims).

③ There is a causal relationship between abuse and the consequences that seriously harm the interests of the company's creditors.

④ The abuser is subjective and intentional, and has the malice of evading debts and harming the interests of the company's creditors through abuse.

(2) legal effect.

(1) Order the shareholders (or actual controllers) of the company who abuse their powers to bear joint and several liabilities for the debts of the company (other shareholders are not liable).

(2) "Disregard of corporate personality" does not completely and permanently eliminate the legal person's civil subject qualification (it does not eliminate the legal person's civil rights capacity), and the company whose personality is denied in the case still enjoys civil rights capacity and civil capacity.

3 "a case of a break". The judgment of a case that denies the company's personality has res judicata only for the parties to this case, and may not be applicable to other lawsuits involving the company. The facts of abuse confirmed by the effective judgment can be used as evidence in future cases.

(3) Litigation structure.

(1) If the creditor's creditor's right to the debtor's company has been confirmed by the effective judgment, it will file a separate lawsuit to deny the company's personality and request the shareholders to bear joint and several liabilities for the company's debts, with the listed shareholder as the defendant and the company as the third party (Article 13 of the Nine Minutes).

(2) Where a creditor files a lawsuit against the creditor's rights enjoyed by the debtor company and at the same time files a lawsuit denying the company's personality, and requests the shareholders to bear joint and several liabilities for the company's debts, the company and the shareholders will be listed as * * * co-defendants (Article 13 of the Minutes of the Nine-member Meeting).

(3) If the creditor's creditor's right to the debtor's company is not confirmed by the effective judgment and directly denies the company's personality, the people's court shall explain to the creditor that the company is added as a co-defendant. If the creditor refuses to supplement, the people's court shall rule to dismiss the prosecution (article 13 of the minutes of nine people).

3. Identification of "personality disorder" (Article 10 of the Nine People's Summary)

(1) meaning.

(1) personality disorder refers to the fact that the company's personality is not independent and it continues to lack the independent will of the company. The company has become a tool (puppet) for shareholders to carry out their personal will, and the company's legal independent personality has also deteriorated. Confusion of personality often leads to confusion.

② When personality disorder occurs, there are often business disorder, staff disorder (especially financial personnel disorder) and residence disorder at the same time. However, when the court hears a case, the key is to examine whether it constitutes personality confusion, and it does not require other aspects of confusion to exist at the same time. Other aspects of confusion are often just the reinforcement of personality confusion.

(2) recognition.

The most fundamental criterion to judge whether corporate personality and shareholder personality are confused is whether the company has independent meaning and independent property, and the most important performance is whether corporate property and shareholder property are confused. When determining whether it constitutes personality disorder, the following factors should be comprehensively considered:

(1) Shareholders use the company's funds or property free of charge and do not keep financial records;

(2) Shareholders use company funds to repay debts, or provide company funds to affiliated companies for free, without making financial records;

③ The company's account books and shareholders' account books can't be distinguished, which makes it impossible to distinguish the company's property from shareholders' property;

(4) There is no distinction between shareholders' own profits and the company's profits, which leads to unclear interests of both parties;

⑤ The company's property is recorded in the name of shareholders, and is owned and used by shareholders;

⑥ Other circumstances of personality disorder.

4. Identification of "excessive domination and control" (Article 1 1 of Nine Minutes)

(1) meaning. Excessive domination and control of the company by the controlling shareholder of the company means that the company's shareholders (or actual controllers) manipulate the company's decision-making process, making the company completely lose its independence and become the tool or institution of the controlling shareholder.

(2) recognition. The most fundamental criterion for judging whether the behavior of shareholders constitutes excessive domination and control is whether the company has independent will and independent property. Excessive domination and control of the company by the controlling shareholder of the company, common situations in practice include:

(1) Benefit transfer between parent company or subsidiary company;

(2) When a transaction is conducted between a parent company and a subsidiary company, the income belongs to one party, but the loss is borne by the other party;

(3) Withdraw funds from the original company first, and then set up a company with the same or similar business purpose to avoid the debts of the original company;

(4) Dissolve the company first, and then set up another company with the original company's premises, equipment, personnel and the same or similar business purposes to avoid the debts of the original company;

⑤ Other situations of excessive domination and control.

5. Identification of "obvious shortage of funds" (Article 12 of Nine Minutes)

(1) meaning. Major capital shortage refers to the mismatch between the amount of capital actually invested by shareholders and the risks implied in the company's operation during the company's operation.

(2) recognition. Shareholders use less capital to operate beyond their authority, which shows that they are not sincere in operating the company. The essence is to maliciously use the independent personality of the company and the limited liability of shareholders to transfer investment risks to creditors. Because the criteria for judging the shortage of funds are very vague, especially different from the company's "small but wide" normal operation mode, it should be applied very cautiously and comprehensively judged by combining other factors.

6. Horizontal denial (Paragraph 2 of Article 1 1 of the Nine Persons' Minutes)

If the controlling shareholder or actual controller controls multiple subsidiaries or affiliated companies, and abuses the control right, making the property boundaries of multiple subsidiaries or affiliated companies unclear, financial confusion, mutual transfer of interests, and loss of personality independence, and becoming a tool for the controlling shareholder to evade debts, illegally operate, or even commit crimes, it can deny the corporate legal person status of the subsidiaries or affiliated companies to each other in combination with the facts of the case and order the other party to bear joint and several liabilities.

7. Merger, bankruptcy and merger and reorganization

① Article 32 of the Minutes of the National Bankruptcy Trial Conference stipulates: "Prudently apply the substantive merger and bankruptcy of affiliated enterprises. When trying enterprise bankruptcy cases, the people's courts should respect the independence of legal person, and take the sole judgment of bankruptcy reasons of affiliated enterprise members and the application of single bankruptcy procedure as the basic principles. When there is a high degree of legal personality confusion among members of affiliated enterprises, and the cost of property division among members of affiliated enterprises is too high, which seriously damages the interests of creditors in fair liquidation, the substantive merger and bankruptcy of affiliated enterprises can be applied as an exception. "

② Article 33 of the Minutes of the National Bankruptcy Trial Conference stipulates: "Examination of the application for substantive merger. After receiving the application for substantive merger, the people's court shall promptly notify the relevant interested parties and organize a hearing, and the hearing time shall not be included in the examination time. In the process of examining the application for substantive merger, the people's court can make a ruling on whether to carry out substantive merger within 30 days from the date of receiving the application, taking into account factors such as the procedure and duration of asset mixing between affiliated enterprises, the interest relationship between enterprises, the overall repayment of interests by creditors, and the possibility of increasing enterprise restructuring. "

(3) Article 36 of the Minutes of the National Bankruptcy Trial Conference stipulates: "Legal consequences of substantive joint trial. If the people's court decides to try a bankruptcy case by substantive merger, the creditor's rights and debts between the members of the affiliated enterprise will be eliminated, and the property of each member will be treated as a unified bankruptcy property after the merger, and the creditors of each member will be fairly compensated in the same procedure according to the legal order. If reorganization is carried out by means of substantive merger, a unified creditor's rights classification, creditor's rights adjustment and creditor's rights compensation scheme shall be formulated in the draft reorganization plan. "

(4) Article 37 of the Minutes of the National Bankruptcy Trial Work Conference stipulates: "Members of an enterprise shall survive after the substantive merger trial. Where the substantive merger rule is applied for bankruptcy liquidation, all members of the affiliated enterprise shall be cancelled after the bankruptcy proceedings are completed. If the substantive merger rules are applied for reconciliation or reorganization, in principle, all affiliated enterprises should be merged into one enterprise. According to the settlement agreement or reorganization plan, if it is really necessary to maintain the independence of a single enterprise, it shall be handled separately in accordance with the relevant rules of enterprise division. "

8. Reverse denial (reverse penetration of the corporate veil)

1 meaning. It shows that "corporate personality denial" often brings unfavorable benefits to the controlling shareholders or actual controllers who have committed abuses, and they must bear joint and several liabilities for the debts of the company. In rare cases, there may be such a situation: due to the abuse of controlling shareholders, personality confusion and hodgepodge appear between controlling shareholders and the company. If the confused property is identified as the company's property, it can get some preferential treatment (tax or other policies) according to the legal provisions or public policies, and the shareholders appeal to the court to identify the shareholders and the company as one, so as to enjoy this preferential treatment, which constitutes "reverse denial".

2 function. The same property can be identified in the name of both shareholders and companies, which will lead to different taxes and public policies. In order to obtain this special treatment, shareholders will also take the initiative to use the corporate personality denial system to confirm that they and the company are not independent or even the same. For example, according to the law, the wartime government can seal up or restrict the behavior and assets of an "enemy" company, or even revoke its business license, but in fact, most of the shareholders of this "enemy" company may have been in their own hands (and thus have a personality disorder or confusion). Due to the personality separation (independence) between members and associations, members and associations will suffer different (legal) treatment. In this case, the shareholders' meeting will think of using the legal person personality denial system to deny the independent personality of the "enemy" company, so as to avoid the property of the "enemy" company being sealed up or suffering other unfavorable interests.

Third, the classification of legal persons.

(A) the theoretical classification of legal persons

1, public legal person and private legal person (distinguishing standard: foundation)

(1) public legal person. Refers to the legal person established by the state in accordance with public law to exercise or share state power or government functions (note: these organizations are regarded as public legal persons only when they participate in civil activities or bear civil liabilities according to law; When it acts as an administrative subject, it does not consider its personality as a public legal person).

2 private. Refers to a legal person established in accordance with private law and not performing state functions.

2, corporate and consortium legal person (this is the classification of private. Distinguishing standard: the foundation of standing)

(1) legal person. Refers to private individuals (including companies, enterprises, cooperatives, associations, societies, etc.). ) is based on a collection of people.

(2) consortium legal person. Refers to private individuals (including foundations, charitable organizations, monasteries, etc.). ) is based on a certain purpose attribute.

3. For-profit legal person, public welfare legal person and intermediate legal person (distinction standard: purpose of establishment)

(1) for-profit legal person. For-profit legal persons refer to companies, enterprises and other legal persons whose purpose is to obtain profits and distribute them to their members. The so-called "for-profit" of for-profit legal person emphasizes that the purpose of establishing a legal person is to "make profits for its members". If there is such a purpose, there is no need to ask whether the legal person is really making a profit.

② Public welfare legal person. Public welfare legal persons refer to schools, hospitals, charities, china law society and other legal persons with the purpose of public welfare. It does not mean that a public welfare legal person cannot engage in profit-making activities, but that the purpose of establishing a person is not to distribute profits to its members.

③ Intermediate legal person. Intermediate legal person refers to a legal person who is neither purely for profit nor purely for public welfare. Such as fraternity, alumni association and hometown association with legal personality.

(2) Classification of legal persons in civil law (legislative classification)

1, for-profit legal person

1 concept. A legal person established for the purpose of obtaining profits and distributing them to shareholders and other investors is a profit-making legal person.

2 range. For-profit legal persons include limited liability companies, joint stock limited companies and other corporate legal persons.

2. Non-profit legal person

(1) concept. A legal person established for public welfare or other non-profit purposes is a non-profit legal person if it does not distribute profits to its investors, founders or members.

(2) scope. Non-profit legal persons include institutions, social organizations and donated legal persons (foundations, social service institutions and places for religious activities).

1 institution. The legal person has the legal person status, and the institution established for public welfare is registered and established according to law, and has obtained the legal person status of the institution; If it is not necessary to register as a legal person according to law, it shall have the legal person status of a public institution from the date of its establishment (Article 88 of the Civil Code).

(2) social organizations. A legal person has obtained the status of a legal person, and a social organization established for non-profit purposes such as public welfare or the same interests of its members on the basis of the consent of its members has been registered and established according to law and obtained the status of a legal person of a social organization; If it is not required to be registered as a legal person according to law, it shall have the status of a social group legal person from the date of its establishment (Article 90 of the Civil Code).

③ Donating legal persons. Foundations, social service organizations, etc. , with the qualification of legal person, for the purpose of public welfare, established with donated property, registered and established according to law, and obtained the qualification of donated legal person (Article 92, paragraph 1 of the Civil Code).

A legally established venue for religious activities that meets the requirements of a legal person may apply for registration as a legal person and obtain the qualification of a donated legal person (Paragraph 2 of Article 92 of the Civil Law).

3. Special legal person

(1) An organ with independent funds and a statutory body that undertakes administrative functions shall have the status of an organ as a legal person from the date of its establishment and may engage in civil activities necessary for the performance of its functions (Article 97 of the Civil Code).

② Rural collective economic organizations have obtained legal person status according to law (Article 99, paragraph 1 of the Civil Code).

③ Urban-rural cooperative economic organizations have obtained legal person status according to law (article 100, paragraph 1 of the Civil Code).

(4) Residents' committees and villagers' committees have the legal personality of grass-roots mass autonomous organizations and can engage in civil activities needed to perform their functions (Article 10 1 of the Civil Code).

If a village collective economic organization is not established, the villagers' committee may act as the authority of the village collective economic organization according to law (Article 10 1 3 of the Civil Code).

(3) The academic classification of the legal person types stipulated in the Civil Code.

(4) Some special rules on profit-making legal persons, donation legal persons and non-profit legal persons.

1, special provisions on profit-making legal persons

(1) law. Article 85 of the Civil Code stipulates: "If the functions and powers of a profit-making legal person and the convening procedure and voting method of the resolution made by the executive organ violate laws, administrative regulations or the articles of association of the legal person, or the contents of the resolution violate the articles of association of the legal person, the investor of the profit-making legal person may request the people's court to cancel the resolution. However, the civil legal relationship between the for-profit legal person and the bona fide counterpart based on this resolution will not be affected. "

(2) understanding. It should be noted that, as far as the reasons for revocation are concerned, the content of the resolution is limited to violating the articles of association of the legal person. If the contents of the resolution violate the mandatory provisions of laws and administrative regulations, the resolution is invalid. (2) The person who has the right to file a revocation lawsuit is the "investor".

2. Special rules for donating legal persons

① Change of legal person's purpose. Only the competent authority has the right to change the purpose of legal person donation. Article 15 of the Regulations on the Administration of Foundations stipulates: "If the registered items of foundations, foundation branches, foundation representative offices and overseas foundation representative offices need to be changed, they shall apply to the registration authority for change of registration. If the foundation amends its articles of association, it shall obtain the consent of its competent business unit and report it to the registration authority for approval. "

(2) Violation of the Articles of Association. Paragraph 2 of Article 94 of the Civil Code stipulates: "If the decision made by the decision-making organ, executive organ or legal representative of the donor legal person violates laws, administrative regulations or the articles of association of the legal person, or the content of the decision violates the articles of association of the legal person, the donor or the competent authority and other interested parties may request the people's court to cancel the decision. However, the civil legal relationship between the donor legal person and the bona fide counterpart based on this decision will not be affected. "

3. Special rules on non-profit legal persons

Article 95 of the Civil Code stipulates: "When a non-profit legal person established for the purpose of public welfare terminates, it shall not distribute the remaining property to its investors, promoters or members. The remaining property shall be used for public welfare undertakings in accordance with the provisions of the articles of association of the legal person or the resolution of the management organization; If it cannot be handled in accordance with the provisions of the articles of association of the legal person or the resolution of the authority, it shall be transferred to a legal person with the same or similar purpose under the auspices of the competent authority and announced to the public. "