摘要
实证研究表明,我国的公司法人格否认制度已经在现实中得到了积极应用。我国的公司面纱刺破率明显高于国外,而且呈现逐年上升的态势。很多案件发生在经济欠发达地区,而且这些地区的刺破率整体上高于经济发达地区。目前所有公司法人格否认案件都针对股东数量很少的有限责任公司提起,而且股东人数越少,刺破率越高,涉及一人公司的面纱刺破率高达100%。与理论预测不同,我国涉及合同之债和侵权之债的案件在刺破率上并没有明显不同,而且在公司集团场合的刺破率不高反低。混同是最为常见的刺破理由,其中财产混同又适用最多,导致的刺破率也最高。
China introduced the doctrine of piercing the corporate veil formally in its 2005 company law overhaul, attracting widespread social and academic attention in China and beyond. This represents a bold move as well as an useful experiment in that China has codified a common law doctrine renowned for its perplexity and amorphousness. How has China codified the doctrine？ How is it applied in practice？ And what lessons, if any, can we learn from the Chinese experience？ To answer these questions, this paper undertakes the first comprehensive empirical study of China^s piercing cases adjudicated under the statutory veil piercing regime. The study produces some interesting results and compares them with similar studies in overseas jurisdictions, including the U. S. , the U. K. and Australia. Based on the empirical findings, the paper evaluates the efficiency of the veil--piercing legal regime in China and makes proposals for improvement. The key empirical findings of this study are as follows. Firstly, although the history of China^s veil- piercing regime is relatively short, it has been actively utilized in practice, producing a significant number of cases. Secondly, the overall rate of piercing in China is significantly higher than those in overseas countries, and is still rising on a yearly basis, Thirdly, a large percentage of cases occurred in economically less developed regions in China, and the piercing rate there as a whole is also found to be significantly higher than that in economically more developed regions in China. Fourthly, all cases were found in the context of small limited liability companies, and there is a pattern that the more closely held the company, the more likely courts pierce. It is also significant to note that the veil was pierced in all the cases involving one-- member companies. Fifthly, contrary to the theoretical predictions, the piercing rate is roughly the same in a tort context as in a contract context, and Chinese courts even pierce the veil less frequently in the corporate gr
出处
《法学研究》
CSSCI
北大核心
2012年第1期3-16,共14页
Chinese Journal of Law
关键词
公司法人格否认
刺破面纱
刺破率
实证研究
company law, piercing the corporate veil, rate of piercing, empirical study
