One-person corporate personality denial
2009-09-10 10:18:31 Click to favorite 1 person click to view comments
A invested in July 2006 A camera company was established, mainly engaged in photography, color expansion and other businesses. The company has six employees, three are videographers and three do odd jobs. A is the only shareholder of the company and also serves as the manager. The company's daily affairs are all subject to A's instructions. In September, due to the expansion of business, A needed to purchase a batch of photographic equipment, so A signed a sales contract with Zhongtian Photographic Equipment Co., Ltd. The contract stipulated that Zhongtian Photographic Equipment Co., Ltd. provided a batch of photographic equipment to A Photography Company, and A camera company needs to pay the total price of 260,000 yuan in October. A signed the contract in the name of the company. After the payment was due, Camera Company A delayed in paying the payment. After repeated urgings to no avail, Zhongtian Camera Equipment Co., Ltd. took the camera company to court and requested repayment. The court ruled that Zhongtian Camera Equipment Co., Ltd. won the case. During execution, it was found that the company's account had no money. After investigation, it was found that A had already transferred the company's property to his personal name. So Zhongtian Photographic Equipment Co., Ltd. filed a new lawsuit with A as the defendant, requiring him to bear unlimited liability for the company's debts.
Magic weapon analysis:
This case is a typical case of personality denial for a one-person limited company. In a one-person company, since there is no internal control and supervision mechanism, shareholders often abuse limited liability and the independent status of the company. In practice, there are mainly the following situations where shareholders abuse the independent personality of a one-person company: namely: confusion of personalities, shareholders treat the one-person company as another self or tool, and the company has no independent will and independent decision-making; property confusion, a one-person company The property of the shareholder cannot be clearly distinguished from the property of the shareholder; the business is mixed, the one-person company and the shareholder are engaged in the same business activities, sometimes engaging in transactions in the name of the individual shareholder, sometimes in the name of the company.
After A signed the sales contract in the name of the company, he tried to evade the debt to the seller and transferred the company's property to himself. In this way, although the other party won the lawsuit, it would also be able to evade because the company had no property to enforce it. Get rid of this debt. However, A's behavior is an abuse of the company's independent personality. According to the law, the company's independent personality should be denied and A should bear unlimited liability for the company's debts. In a one-person company, the protection of the interests of creditors is at a weak point. Therefore, the denial of legal personality of a one-person company is a crucial system for the protection of creditors
In the past, courts have generally denied the denial of identity concealment. The legal personality of a husband and wife company. After the new "Company Law" recognizes a one-person company, will there be any changes in the understanding of the legal personality of a husband and wife company?
Although the new "Company Law" allows one natural person to set up a limited liability company, due to the high threshold for a one-person company and the extremely high risk of being lifted, there will still be a large number of de facto cases in the future. There are one-person companies or "quasi-one-person companies" or "fake one-person companies". The most typical ones are husband-wife companies, brother companies, father-son companies or friend companies. Among them, the problem of unveiling the veil of husband-wife companies is the most special. At this time, because the marital property is the joint property of the husband and wife, if the husband and wife do not agree on the division of the joint property of the husband and wife when they start the company, then there will be two specialties when the veil of the husband and wife company is unveiled: < /p>
The first is the particularity of husband and wife as shareholders of a limited company. If there is no division and agreement on the division of marital property, then the capital contributions invested by the husband and wife in the company may appear to be shares of different shareholders, but in fact they are the same property, and the intention between the husband and wife This is usually the same, which is why such a husband-and-wife company is actually the same in nature as a one-person company. Only in appearance, a husband-and-wife company is not a one-person company. At this time, how to determine the legal personality of the husband-and-wife company has become the key to determining the outcome of the case.
The second is the particularity of determining the scope of property of shareholders' joint and several liability to the company when the veil is lifted on a husband-and-wife company. Since there is usually no agreement on marital property, if the judge lifts the veil of a husband-and-wife company, it actually means that not only the husband and wife should be jointly and severally liable for the debts of the company, but it also means that the husband and wife should be jointly and severally liable for the debts of the company. .
That's another special thing about unveiling the veil for mom-and-pop companies and unveiling the veil for other companies.
Case 1 Legal personality case of a husband-and-wife company (health product company)
Case Facts
A health product company in Anhui Province (hereinafter referred to as "health product company") ) developed a health product (referred to as "A"). In June 2001, a pharmaceutical company in Nanjing (hereinafter referred to as the "Pharmaceutical Company") signed a "Health Products Agency Sales Agreement" with a health care product company. The agreement stipulated that the pharmaceutical company bought out A's three-year national distribution rights, and A's price It is 30 yuan per bottle; the pharmaceutical company needs to complete the agreed minimum sales volume every month (the first six months is 5,000 bottles, and the rest is omitted); when the pharmaceutical company cannot complete the sales volume, the unfinished part will be compensated to the health care product company at 3 yuan per bottle; The pharmaceutical company paid RMB 200,000 to the health product company as a performance deposit. Within 7 days from the date of termination of the agreement, the health product company will return the full amount to the pharmaceutical company. If the return is overdue, a liquidated damages of 3‰/day will be paid.
After signing the contract, due to poor sales of health product A, the pharmaceutical company only sold 900 bottles within three months. The health product company urged many times, but the sales of the pharmaceutical company did not improve. In January 2002, the health care product company sent a fax to the pharmaceutical company, stating in the fax: Due to the breach of contract by the pharmaceutical company, the health care product company unilaterally terminated the consignment agreement, and the health care product company confiscated the 200,000 yuan deposit paid by the pharmaceutical company for compensation. Losses for health supplement companies.
The pharmaceutical company tried unsuccessfully to demand a deposit of 200,000 yuan from the health product company, so it filed a lawsuit with a Nanjing court in May 2002, requesting that the health product company return the deposit and pay liquidated damages for overdue payments. The pharmaceutical company also applied for litigation preservation measures against the health product company's property. However, when the court conducted litigation preservation on the health product company's property, it was found that there were only more than 1,000 bank accounts in the hands of the pharmaceutical company or in the health product company's industrial and commercial files. Yuan, and the site of the health care product company is rented, and the production method is "incoming materials are exchanged". Therefore, the production equipment is relatively simple and has limited value.
The lawyer discovered during the file check that the health care product company was established in 1997. The shareholders were a man (W) and a woman (Z), and the investment method was cash + five houses. W and Z's ID card addresses at that time were exactly the same. The lawyer also found that: 1. According to the public security household registration information, W and Z, the shareholders of the health care product company, are husband and wife. Their ID card addresses in 1996 are the same, but the addresses in the latest ID cards are different; 2. According to the industrial and commercial files, the registered capital of the health care product company is 50 W and Z used 5 houses and a small amount of cash to invest; 3. In the real estate files, only the property rights of 4 houses can be found. The property rights have always been in the names of W and Z and have never been transferred to the name of the company. The property was purchased and transferred to other people not long ago; it was discovered that there was a newly purchased house under Z’s name, with an invoice amount of more than 160,000.
The pharmaceutical company added W and Z as co-defendants in this case. The court accepted the pharmaceutical company’s request and took litigation preservation measures on the house under Z’s name according to the application. As a result, W and Z realized that it was basically impossible to continue to evade debt, so under the auspices of the court, they reached a mediation agreement, and W and Z returned the deposit.
The perspective of the lawyer handling the case
First of all, husband and wife are a kind of "legal property entity". During the validity of the marriage, according to the law, the property of the husband and wife is presumed to belong to the couple. **have. Of course, they can agree on "the ownership of property acquired before marriage or during the relationship between husband and wife", but such an agreement will not be binding on the third party if it is not effectively publicized to the outside world or the third party is unaware of it. It is normal that the property during the existence of the relationship between husband and wife is the exclusive property of the husband and wife. If the couple claims that there is an agreement between the two parties, they should provide evidence. Otherwise, their property is the exclusive property of the husband and wife. In terms of property, regarded as a single entity.
If a company is established with the property of a husband and wife, the capital contributor is a single person, which does not comply with the old "Company Law" that a limited liability company must have more than two shareholders. In essence, it is a "one-person company" ", which is inconsistent with the corporate characteristics of the company and fundamentally runs counter to the "principle of separation" premised on limited liability. These companies violated the "contractual nature" of the company's articles of association, and the company's operations lacked independence. Relevant documents from the Jiangsu Provincial High Court believe that "a limited liability company registered with a husband and wife as shareholders, and the property used by the husband and wife to contribute capital cannot be clearly distinguished, should be treated as a 'partnership'." This is analogous to the provision that "partners bear unlimited joint and several liability for the debts of the partnership organization".
Therefore, the "husband-and-wife company" does not meet the provisions of the Company Law on "limited liability companies", and neither husband nor wife has the right to claim limited liability. The health care product company is a company established by W and Z with the joint property investment of husband and wife. It does not comply with the regulations of a limited liability company. The shareholders of the health care product company should not be limited to limited liability.
Secondly, in this case, even if W and Z are not husband and wife, they should be held personally liable for their false capital contributions and evasive capital contributions. The physical objects used by W and Z to contribute capital have not transferred the property rights to the company from beginning to end, which violates the provisions of Article 25 of the "Company Law" and is deemed to have not contributed capital, resulting in the registered capital of the health care product company not reaching the "Company Law" The minimum standard of 500,000 stipulated in Article 23 does not meet the conditions for company establishment. Although the company registration was obtained through fraudulent means, which was consistent with the appearance of the company, in fact, the company was not established from the beginning due to flaws in the administrative procedures for its establishment. Corporate actions are regarded as personal actions, and the perpetrators shall be directly responsible for them. The property registered as capital contribution by W and Z was transferred in their personal names, which was an act of misappropriation of the company's assets, causing the company to lose its responsible property, violating the company's "capital maintenance principle", and preventing the company from independently assuming civil liability with its own property. When shareholders infringe on the interests of the company, they also infringe on the interests of creditors and should bear responsibility for the creditors.
The lawyer handling the case started by investigating the true status of the company's registered capital, and finally forced the company's shareholders to settle the case through reconciliation by adding additional defendants, which is really admirable. However, the lawyer handling the case raised a question about the new "Company Law": On the premise that the new "Company Law" has recognized one-person companies, is a limited liability company established by a couple's investment still prohibited by the company law? The author thinks the answer is no. The author believes that under the premise that the new Company Law has clearly recognized the special company form of one-person limited company, it would be inappropriate for the court to regard a husband-and-wife company as a "partnership". Legally speaking, marital property is the property owned jointly by the husband and wife. Therefore, the limited company invested and established by the couple, regardless of whether it is publicly declared to be a husband and wife company, is essentially owned by the husband and wife. Some companies, that is, companies jointly owned by an interest group, and husband and wife companies usually show a high degree of consistency in their expressions of meaning. Judging from these two points, the husband and wife company seems to be one person in the legal sense. Company is more appropriate. Therefore, the author advocates that the special regulations for one-person companies should apply to all husband-and-wife companies. For the sake of transaction security, it is best to note the nature of a husband-and-wife company when registering with the industrial and commercial company, just like when registering a one-person company, it should note "sole proprietorship by a natural person". According to the author’s investigation of the Industry and Commerce Bureau, the Industry and Commerce Bureau has no obligation to ask investors whether they are husband and wife when registering a company. If the parties take the initiative to inform the Industry and Commerce Bureau of their marital status or the Industry and Commerce Bureau is aware of their marital status, the Industry and Commerce Bureau will generally They are required to conduct property notarization to prove that the property used by the couple to contribute capital is their own separate property and not the joint property.
When a couple invests in and establishes a company and conceals their identity as husband and wife during registration, if a dispute arises in the future, the judgment should still be based on the special regulations of a one-person company, and it is not appropriate to identify the couple's company as a partnership.
When a couple divorces, since the marital property usually needs to be divided, the couple's company will not truly become a non-one-person company or a veritable one-person company from the date of divorce. At this time, it is not appropriate to treat it as a one-person company. Be a partnership or a sole proprietorship of natural persons. However, if it is necessary to lift the corporate veil for debts incurred by the couple's company before the couple divorced, the couple should still be determined to be jointly and severally liable to pay off the debts. To this end, let’s first analyze the following case.
Case 2 was divorced because of debt evasion, and the husband and wife’s corporate personality was denied
Jiang and Tu were originally husband and wife. On September 8, 2003, Jiang registered with the industrial and commercial administration department and established an information service department. Its business scope is: "brokerage of consumer goods, means of production (except for special provisions by the state), real estate brokerage services; domestic labor information consultation and agency "On December 8, 2004, Jiang charged the plaintiff Zhao 25,800 yuan in the name of the Information Service Department and promised to send Zhao to work in shipping companies across the country. However, since then, Jiang failed to fulfill his obligations in a timely manner as promised, and the Information Service Department was canceled by the industrial and commercial department on March 24, 2005 due to closure.
On December 14, 2004, Jiang and Tu jointly invested in and established a crew service company after registering with the industrial and commercial administration department, and obtained a corporate business license. Their business scope was: "crew education and training, crew Management, domestic labor services, issuing certificates for crew members; product information consultation, marriage introduction (if the state has special regulations, those regulations shall apply). "In the enterprise registration materials of the industrial and commercial department, Jiang invested 40,000 yuan and Tu invested 6,000 yuan. Ten thousand yuan. However, when the crew service company was established, Jiang and Tu did not indicate their marital status to the industrial and commercial department, nor did they submit proof of marital property division to the industrial and commercial department in accordance with relevant national regulations. Tu also did not actually contribute capital. , all registered capital was raised by Jiang. After the crew service company was established, Jiang used the company's registered capital to repay the debts of the Information Services Department. When Zhao failed to obtain a job in time, he approached Jiang many times. On January 10, 2005, Jiang signed an agreement with Zhao in the name of a crew service company. The main contents of the agreement are as follows: In 2004, Jiang arranged to go to a maritime safety bureau in Shandong for training. The crew members of commercial cargo ships have not been able to do so until now. Study fees must be paid in full; upon mutual agreement, Jiang will pay all the fees owed to Shandong intermediary Guo before 12:00 a.m. on January 12, 2005; for example, on the morning of January 12, 2005, Jiang If the fees are not paid in full to the Shandong intermediary before 12 o'clock, Zhao has the right to terminate the agreement; Jiang will unconditionally refund all the fees paid with receipts, receipts, and certificates; the above agreement will be signed by both parties from the date of signing. takes effect later. The two parties also stated in the agreement that if Zhao gives up without reason or the responsibility cannot be attributed to Jiang, the fees paid by Zhao will not be refunded. The agreement was signed by Jiang and Zhao, and the crew service company also stamped the agreement. However, after the agreement was signed, Jiang and the crew service company still failed to arrange training for Zhao as scheduled. On January 14 of the same year, Guo issued a certificate to Zhao stating that he had not received training fees from Jiang and the crew service company.
In order to recover the fees paid, Zhao filed a lawsuit with the People's Court on May 27, 2005, naming Jiang and the crew service company as defendants. After receiving a copy of the complaint and a notice of response and other legal documents served by the People's Court, Jiang and Tu went through the divorce procedures by agreement at the Hai'an County Civil Affairs Bureau on June 1. The two parties agreed in the divorce agreement that, except for a TV, a washing machine, an electric fan, and a desk, all other properties would belong to Tu; the children born out of wedlock would be raised by Jiang, and all alimony would be borne by Jiang; The claims and debts incurred during the marriage relationship shall be collected and repaid by Jiang. Thereafter, based on Zhao’s application, the court added Tu as a defendant to participate in the lawsuit according to law.
During the trial, the plaintiff Zhao claimed that the defendant Jiang charged me 25,800 yuan and promised to send him to work in shipping companies across the country. On January 10, 2005, Jiang signed an agreement with him in the name of the crew service company, promising to pay the outstanding fees to Guo, the Shandong intermediary, before 12 a.m. on January 12, 2005. Otherwise, I have the right to terminate the agreement and The fee will be refunded unconditionally. Now that the defendant has failed to perform the contract, it is requested that the defendant be ordered to jointly and severally repay 25,800 yuan. The defendant Jiang argued that the plaintiff Zhao had paid me 17,500 yuan and introduced him to work as a sailor. Later, because he felt that the wages of sailors were low, he asked to change the type of work, and paid part of the payment on December 8, 2004. , because the breach of contract occurred first, and I did not commit any breach of contract, so I should not be responsible for returning the 25,800 yuan already collected. However, during the trial, Jiang failed to prove that Zhao had breached the contract first. The defendant, the crew service company, argued that Zhao did not pay any fees to our company, and our company would not agree to any of its claims. The defendant Tu argued that she did not know everything that happened between Zhao and Jiang, so she could not bear any responsibility.
After trial, the Hai'an County Court held that the information service department was founded by the defendant Jiang, and after the company went out of business, the creditor's rights and debts should be enjoyed and paid off by the founder Jiang. The defendant Crew Service Company and Jiang signed an agreement with Zhao on matters such as the return of Zhao's intermediary fees and other matters, and had the obligation to perform according to the agreement. Because Jiang and the crew service company failed to perform their obligations as agreed, they should be responsible for returning the labor agency fees.
When the defendants Jiang and Tu established a crew service company, they concealed their identity as husband and wife and contributed capital from the joint property of the couple. They also failed to submit proof of property division to the industrial and commercial department. The company did not have the nature of a limited liability company in the strict sense. , does not have legal personality, and its debts to creditors shall be repaid jointly by investors.
Accordingly, in accordance with the relevant provisions of my country’s Contract Law and with reference to the State Administration for Industry and Commerce’s Provisions on Certain Issues in Company Registration Management, the court used the corporate personality denial system to deny the defendant Crew Services Company in the first instance. At the same time, the company's shareholders, the defendants Jiang and Tu, were ordered to jointly and severally repay the labor agency fee of 25,800 yuan to the plaintiff Zhao.
Judge’s Comments
The disputes in this case mainly focus on two aspects: first, whether the husband-and-wife company has legal personality, and how to determine the responsible party for the debts it incurred during its business operations; second, It is to confirm the validity of the agreement reached by the couple on the division of property when they divorce by mutual agreement.
The so-called husband and wife company refers to a limited liability company established by only a husband and wife as shareholders. Regarding husband-and-wife companies, our country’s company law does not explicitly prohibit them. In January 1998, Article 23 of the "Regulations on Several Issues in Company Registration and Management" issued by the State Administration for Industry and Commerce stipulates: "Family members who jointly contribute capital to establish a limited liability company must use their respective properties as registered capital and Each party shall bear corresponding responsibilities, and a written certificate or agreement of property division shall be submitted during registration. "In trial practice, the people's court will generally deny the personality of the company based on the provisions of this article because the parties did not provide proof of property division when registering the company. Thereby protecting the legitimate rights and interests of creditors. The so-called denial of corporate personality means that when the shareholder with actual controlling power behind the company violates the principle of good faith and the legal spirit of fairness and justice, abuses the company's independent personality, and harms the interests of the company's creditors and the public, the court will set aside The company's independent personality regards the company's actions as the actions of the shareholders who actually control the company hidden behind the company, making it bear corresponding legal responsibilities. The establishment of a corporate personality denial system still takes the maintenance of the company's independent personality as a general principle, encourages investors to boldly invest a certain amount of money in the company on the premise of ensuring that they do not bear personal risks for the company's debts, and at the same time prohibits shareholders from taking advantage of the company. Engaging in inappropriate activities and seeking illegal benefits, the denial of corporate personality is a necessary and beneficial supplement to the independence of corporate personality, so that the two form a harmonious functional complementation in deep tension. In this case, the crew service company run by the defendants Jiang and Tu obtained legal person status. However, because Jiang and Tu were husband and wife, and Tu did not actually contribute capital when the company was founded, the company’s business decisions were concentrated on Jiang. On one person, Jiang and Tu did not submit a property division certificate when registering the company, making it difficult to distinguish Jiang’s family property from the company’s property, resulting in property confusion and loss of the company’s independence. This is different from Jiang and Tu’s. The subjective fault of a certain person is closely related. Therefore, the court in this case had a legal basis for denying the legal personality of the crew service company when making its judgment. After the legal personality of a crew service company is denied, the company's shareholders should bear unlimited joint and several liability for the company's external debts.
In this case, the defendant Jiang and Tu went to the civil affairs department to go through the divorce procedures after receiving the legal documents from the court. As for the legal effect of divorce, since it is an expression of intention by the parties, the act has been confirmed by the marriage management agency through the issuance of a divorce certificate, and should be protected by law. The people's court cannot conduct judicial review of the divorce act of the parties. However, when the parties are divorcing, the agreement reached on the division of marital property and debt sharing may evade the law because it involves the interests of a third party. The agreement can only be binding between the parties and does not confront the third party. The effectiveness of three people. Article 25 of the Second Judicial Interpretation of the Marriage Law promulgated by the Supreme Court stipulates: "If the divorce agreement of the parties or the judgment, ruling, or mediation letter of the People's Court has dealt with the issue of division of marital property, the creditor still has the right to Claim rights against both men and women for the same debt. After one party assumes joint and several liability for the payment of the same debt, the People's Court should support it based on the divorce agreement or the legal document of the People's Court. The plaintiff Zhao’s application to add Tu as a defendant to participate in the lawsuit and require him to bear responsibility also has a legal basis.
Source: Oriental Fayan website; Author: Judges Chen Zhihong and Lu Yilin of the People's Court of Hai'an County, Jiangsu Province
The author believes that in this case, the judge ruled that the shareholders of the husband and wife company, that is, the husband and wife There is nothing wrong with assuming joint and several liability for the civil liability of the couple's company.
Secondly, this case applies to the old "Company Law" and related administrative regulations. Therefore, there is nothing inappropriate in determining that a husband-and-wife company that has not undergone property notarization does not have legal personality.
However, just like the previous case, it is questionable to deny the personality of a husband-and-wife company in accordance with the provisions of the new "Company Law" and related regulations. There are many similar cases. It is worth looking forward to how the court will determine the personality of the husband-and-wife company.