Abstract:
The reverse disregard of corporate personality system, which originated in the common law system and is universally known as reverse piercing of the corporate veil, refers to the legal regime under which a shareholder’s creditor is entitled to require the company to assume joint and several liability for the shareholder’s debts. In China, the prevailing academic and judicial stance still endorses the traditional one-way piercing rule that imposes liability on shareholders for the company’s debts, while there is a lack of consensus on reverse piercing in both theoretical research and judicial practice——a gap that readily gives rise to inconsistent adjudications in similar cases. The theoretical underpinning of this system rests on the asset partitioning theory and the “dual tension” logic, with its precedential support derived from the analogous application of relevant legal provisions by some courts. However, the system is confronted with theoretical dilemmas including the potential infringement of the rights and interests of innocent shareholders and the imbalance of interests between shareholders’creditors and the company’s creditors, as well as practical dilemmas such as the absence of unified judicial adjudication standards and the lack of superior legislation. The approaches to resolving these dilemmas include implementing phased protection for innocent shareholders, realizing the overall balancing of interests among relevant creditors, and refining the identification rules for the subject, conduct, consequence elements and causation, with a view to unifying judicial adjudications and fully unlocking the due institutional value of the system.