중국 회사법상 법인격부인의 법리의 적용요건에 대한 고찰 (A Study on the formation elements of the Piercing of the Corporate Veil in Chinese Corporate law)

서지정보

· 발행기관 : 한국외국어대학교 법학연구소
· 수록지 정보 : 외법논집 / 34권 / 3호 / 145 ~ 161페이지
· 저자명 : 고재종

초록

Piercing the corporate veil describes a legal decision to treat the rights or duties of a corporation as the rights or liabilities of its shareholders or directors. Usually, a corporation is treated as a separate legal person, which is solely responsible for the debts it incurs and the sole beneficiary of the credit it is owed. Common law countries usually uphold this principle of separate personhood, but in exceptional situations may "pierce" or "lift" the corporate veil. A simple example would be where a businessman has left his job as a director and has signed a contract to not compete with the company he has just left for a period of time. If he set up a company which competed with his former company, technically it would be the company and not the person competing. But it is likely a court would say that the new company was just a "sham", a "fraud" or some other phrase and would still allow the old company to sue the man for breach of contract. A court would look beyond the "legal fiction" to the reality of the situation.
The discussion about the Piercing the corporate veil has been continued from the end of 19th centuries. The first case is the United States v. Milwaukee Refrigerators Trans Co., 142 F. 2d 247, 255.(U.S.) In the same case, the jury Sanborn mentioned that the corporation would be looked upon as a legal entity as a general rule, and until sufficient reason to the contrary appears; but when the notion of legal entity was used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law would regard the corporation as an association of persons. Of course, the germany and United Kingdom not U.S. also discussed about this rule.
But recently, the China was also discussed about this theory after modified at the corporate law of China in 2006. In the previous, this problem was not nearly mentioned except for the case mentioned on the theory and the case department. As a result, many problems occurred in the all regions of the China such as debt avoidance by the misuse of corporate law entity, the creditors' invasions by the violations of shareholder duty, etc. For solving the problems, China modified at the corporate law of china, 2006 and the same theory was enacted..
Therefore, in this articles, I will study in the next points. At first, I will examine at the abuse cases of the corporate law entity and the background of the legislating against the Piercing of the Corporate Veil. Secondly, I will inquire into the contents of the corporate law about the same theory, concretely. Lastly, I will suggest the careful points when we are struggle against the corporate of the china related the same thoery.

영어초록

Piercing the corporate veil describes a legal decision to treat the rights or duties of a corporation as the rights or liabilities of its shareholders or directors. Usually, a corporation is treated as a separate legal person, which is solely responsible for the debts it incurs and the sole beneficiary of the credit it is owed. Common law countries usually uphold this principle of separate personhood, but in exceptional situations may "pierce" or "lift" the corporate veil. A simple example would be where a businessman has left his job as a director and has signed a contract to not compete with the company he has just left for a period of time. If he set up a company which competed with his former company, technically it would be the company and not the person competing. But it is likely a court would say that the new company was just a "sham", a "fraud" or some other phrase and would still allow the old company to sue the man for breach of contract. A court would look beyond the "legal fiction" to the reality of the situation.
The discussion about the Piercing the corporate veil has been continued from the end of 19th centuries. The first case is the United States v. Milwaukee Refrigerators Trans Co., 142 F. 2d 247, 255.(U.S.) In the same case, the jury Sanborn mentioned that the corporation would be looked upon as a legal entity as a general rule, and until sufficient reason to the contrary appears; but when the notion of legal entity was used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law would regard the corporation as an association of persons. Of course, the germany and United Kingdom not U.S. also discussed about this rule.
But recently, the China was also discussed about this theory after modified at the corporate law of China in 2006. In the previous, this problem was not nearly mentioned except for the case mentioned on the theory and the case department. As a result, many problems occurred in the all regions of the China such as debt avoidance by the misuse of corporate law entity, the creditors' invasions by the violations of shareholder duty, etc. For solving the problems, China modified at the corporate law of china, 2006 and the same theory was enacted..
Therefore, in this articles, I will study in the next points. At first, I will examine at the abuse cases of the corporate law entity and the background of the legislating against the Piercing of the Corporate Veil. Secondly, I will inquire into the contents of the corporate law about the same theory, concretely. Lastly, I will suggest the careful points when we are struggle against the corporate of the china related the same thoery.

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