중국 신 회사법상 법인격부인제도의 수용과 발전방안

Abstract

In 2006, China undertook a major overhaul of its legal framework governing corporations by implementing a new Company Law. Much of previous Company Law was revised or eliminated, with many new provisions added. This development was much anticipated by Chinese and foreigners alike, as China’s previous corporate law was unable to keep pace with its fast-growing economy. One of the highlights of the new Company Law is its formal establishment of the concept of “piercing the corporate veil” in Chinese law. The concept of piercing the corporate veil is a longstanding feature of the corporate law of capitalist economies. An important corporate form in such economies is the limited liability corporation(thereinafter LLC), a key attribute of which is that shareholders are not personally liable for corporate debts in excess of their investment in the LLC. Creditors seeking payment of debts or tort victims seeking redress generally can reach only the corporation’s assets, not those of its shareholders. At times, however, courts ignore this corporate fiction and treat a corporation’s debt as the debt of the corporation’s shareholders. In doing so, courts pierce the corporate veil. The notion of piercing the corporate veil did not exist formally in Chinese statutory law prior to 2006. The New Company Law, however, allows courts to pierce the corporate veil under certain circumstances. While this change is welcome, China’s new Company Law fails to address important questions about the veil-piercing doctrine. Articles 20 and 64 are only partially successful in accomplishing the goals above. China’s nascent doctrine falls short in two areas. First, the 2006 Company Law provides insufficient guidance to courts about how to proceed with analyzing a veil-piercing case. Second, the law’s scope is unclear, or otherwise, too narrowly constrained. These shortcomings mean that considerable uncertainty remains for those who invest in or lend to LLCs. In addition, the extent of the judiciary’s power to pierce the corporate veil, as well as limitations on this power, remain less than clear. This comment highlights legal ambiguities on two fronts−how the law is to be applied, and what its scope is. This shortcomings should be addressed in one of two ways. Either the State Council should promulgate additional regulations related to the New Company Law, or the Supreme People’s Court should issue to lower courts a judicial interpretation that establishes guidelines on how the new Company Law should be interpreted. Unless one of these steps is taken, creditors, investors, and shareholders alike will face continued uncertainty about when courts can pierce a corporate veil. Should China proceed down such a path, it ought to stipulate how courts are to balance the various factors considered in their analysis. The Supreme People’s Court or State Council should clarify the applicable scope of the veil-piercing provisions of the New Company Law. China should clarify that the provisions apply in noncreditor context. Other jurisdictions have applied the doctrine more broadly. For example, in the United States, if the corporate form has been abused and the assets of the tortfeasor are insufficient, courts will mandate that a parent company compensate tort victims. Formally recognizing veil piercing ends more than a decade of uncertainty over whether Chinese judges can pierce corporate veils. However, the new law is incomplete and introduces new problems. To correct these problems, the Supreme People’s Court or State Council should issue additional directives to clarify China’s veil-piercing doctrine. In addition, China should consider expanding veil piercing to antitrust and other contexts. Doing so would bring China’s veil-piercing doctrine more in line with international practice.