Dissertations / Theses on the topic 'Disregarding the corporate veil'
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Kakubo, Mwanchela M. "Justifications for piercing the corporate veil." Master's thesis, University of Cape Town, 2011. http://hdl.handle.net/11427/13510.
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Includes bibliographical references.According to the decision in Salomon a company is recognised as a legal entity separate and distinct from its shareholders. Although this fundamental rule has had a considerable influence in company law worldwide, it cannot be absolute and, as such, must allow for exceptions where the courts may disregard the separate legal personality of the company. The general rule is that a court will pierce the corporate veil “only where special circumstances exist indicating that it is a mere façade concealing the true facts, so that the separate existence of the company is in some sense being abused or, at least, is not being maintained in the full sense, with the result that separates between the company and its members does not in fact exist. However the courts uniformly exercise significant discretion, and fail to offer a clear standard for veil piercing.”4 Besides company law, this research paper also considers other areas of law where this principle has been applied. These include labour law, criminal (corporate liability) and maritime law.
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Tham, Szu-Shen. "Piercing the corporate veil: Australia and China." Thesis, Tham, Szu-Shen (2014) Piercing the corporate veil: Australia and China. Honours thesis, Murdoch University, 2014. https://researchrepository.murdoch.edu.au/id/eprint/25665/.
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While Australia has long adopted the corporate veil piercing doctrine from the UK model, China has only recently enacted veil piercing provisions in 2006. This thesis compares Australia’s long standing veil piercing doctrine and China’s recent veil piercing enactment to determine which jurisdiction provides better veil piercing laws in protecting creditors’ interests. The findings of this thesis are significant for creditors such as foreign lenders or business partners who wish to choose a wellprotected and safe market in which to invest.
This thesis will provide a discussion and comparison on Australia’s and China’s directors’ duties to prevent insolvent trading and instances in which veil piercing can occur. There will be an addition of another jurisdiction, United States in lieu of China, because China’s insolvent trading laws are based on US laws and there is a dearth of academic literature in the area of insolvent trading laws in China.
This thesis will argue that Australia has better veil piercing laws to protect creditors’ interests compared to China due to the very limited scope of China’s veil piercing laws, which are drafted in vague terms and the Chinese civil legal system (in which the doctrine of precedent is absent). In addition, the author suggests that this is due to the fact that many companies are still State Owned Enterprises in China, subject to strong political influence and therefore protective of state shareholders.
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Knutsson, Philip. "Piercing the corporate veil : limits of limited liability." Thesis, Stockholms universitet, Juridiska institutionen, 2018. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-153357.
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Nonyane, Samson Koketso. "Examination of circumstances when the corporate veil will be pierced." Diss., University of Pretoria, 2019. http://hdl.handle.net/2263/77426.
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Marobela, Mmatjie Meriam. "Piercing of the corporate veil in a holding/subsidiary relationship." Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/65679.
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Cohen, Jacqui. "Veil Piercing - A Necessary evil? A critical study on the doctrines of limited liability and piercing the corporate veil." Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/4592.
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This paper will focus on the limited liability of the company and one of the important exceptions to this rule: piercing the corporate veil. This paper reveals, after a detailed analysis, that the doctrine of piercing the corporate veil is inherently flawed. While accepting the necessity for such a doctrine in the context of a global market, this paper shows that its application in many jurisdictions, including South Africa, has proved to be problematic. The question that arises for consideration is whether the difficulties associated with piercing the corporate veil outweigh the obvious benefits of its existence. Put another way, does the doctrine, with all of its flaws, bring about sufficient benefits to justify its maintenance within the South African legal system, or are there in fact other remedies to assist those seeking to hold directors and members liable for the conduct of the company? This paper addresses these issues, and ultimately seeks to assess the prospects of the doctrine in respect of its permanence within the South African legal system.
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Asdorian, Kathleen Blake. "Piercing the corporate veil in a religious institution the search for the assets /." Theological Research Exchange Network (TREN) Theological Research Exchange Network (TREN) Access this title online, 2006. http://www.tren.com.
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Konradsson, Charlotta. "Lifting the Corporate Veil : Do we need to regulate this institute in swedish law?" Thesis, Linköping University, Department of Management and Economics, 2000. http://urn.kb.se/resolve?urn=urn:nbn:se:liu:diva-722.
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The subject for this composition is the instute"ansvarsgenombrott"which in english is called"lifting the corporate veil"or"piercing the corporate veil". This institute has given rise to several very controversial questions. The most important questions are: Which principles must be fulfilled if the institute shall come in to question and is there a need for a regulation of the institute in swedish law?
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Navarro, Jose. "The piercing of the corporate veil in Latin American jurisprudence, with specific emphasis on Panama." Thesis, City University London, 2013. http://openaccess.city.ac.uk/3486/.
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This thesis is composed of five chapters. The first chapter addresses general aspects regarding the piercing of the corporate veil. The rationale for this chapter is to give a brief overview of piercing the corporate veil and address basic aspects that will be covered in this thesis; for example, piercing the corporate veil in corporate groups and piercing the corporate veil in the context of privately owned companies. Additionally, reasons for not covering points such as piercing the corporate veil in the context of public companies will be mentioned. The second chapter is dedicated to studying the piercing of the corporate veil in England and the U.S .. These jurisdictions are the parents of the modern corporate personality and general aspects about piercing . the corporate veil derive from these countries. Thus, Chapter Two can be regarded as a continuation of Chapter One. My purpose is to present the Anglo-American piercing of the corporate veil for it to be contrasted in Chapter Three. Chapter Two starts by addressing the piercing of the corporate veil in England and the reasons for the current position of English courts over this matter. The second part of this chapter is dedicated to the U.S. and its approaches developed in order to deal with corporate personality in that jurisdiction. This chapter concludes by stating the reasons why these jurisdictions have different positions regarding this subject. The third chapter will cover the piercing of the corporate veil in Spain and Latin America. This chapter starts by addressing general aspects of the corporate personality in Spain and Latin America as well as civil law concepts and principles used by these jurisdictions when dealing with corporate personality issues. The second section of this chapter is dedicated to Spain and corporate personality issues in that jurisdiction. Following, is the third section which starts by making a brief comment about the reasons for choosing the jurisdictions subject of study before continuing by addressing Argentina, Chile, Colombia and Brazil individually. This chapter ends by making a comparison between the methods used by Spain and the discussed Latin American jurisdictions. The fourth chapter is dedicated to the main case study, Panama. In this chapter, basic aspects of the Panamanian corporate entity in addition to the way in which Panamanian authorities have dealt with corporate veil issues to date are addressed. Finally, the principle of san a critica will be explained in the fifth chapter. The origins and rationale for the existence of sana critica and the reason to consider it suitable for supplementing an approach to deal with corporate veil issues. In addition, each of the rules on which sana critica is founded will be explained as well as the influence these rules have had over judges thinking and judgments. This chapter ends with a suggestion for the development of an approach to deal with corporate veil issues in Panama.
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Dabor, Igho Lordson. "Limited liability : a pathway for corporate recklessness?" Thesis, University of Wolverhampton, 2016. http://hdl.handle.net/2436/620569.
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This thesis argues that the twin concept of separate personality and limited liability from its historical beginnings, has entrenched corporate irresponsibility. It assesses the role that these concepts have played in tackling corporate irresponsibility from their historical origins to the present day, commenting on the lessons learnt. Whilst the institution of the company as a legal person is unquestionably the bedrock of modern company law,1 this thesis examines these concepts not necessarily from the position of disputing the philosophical, economic, or political imperatives, all of which are incredibly important – but from the viewpoint that historically, the principle of separate personality and limited liability entrenches corporate irresponsibility. As such, this thesis suggests a partial abandonment of the separate personality principle because it provides a mechanism for dishonest directors to escape liability for their fraudulent conduct. It also argues that the existing judicial evasion and concealment2 principles and the statutory fraudulent and wrongful trading provisions under the Insolvency Act 19863 are too restrictive, and ambiguous in combating corporate abuse. It is concluded that the existing common law and statutory rules geared towards combating abuse of limited liability provides no coherent format upon which the courts and legislature may effectively curb abuse of the corporate form. As such, these laws in light of their inability to make dishonest directors personally liable for their fraudulent conducts ought to be challenged. There is a need to challenge the existing rules in order to show the effect abuse of limited liability has on creditors, the public and the economy. This research indicates that there ought to be an adequate and effective alternative law which provides balance and support for genuine enterprise whilst providing a robust system whereby those who abuse the corporate form can be easily made liable for corporate debts.
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Sundby, Anna. "Piercing the corporate veil in swedish law : points of view de lege lata and de lege ferenda." Thesis, Linköping University, Department of Management and Economics, 2000. http://urn.kb.se/resolve?urn=urn:nbn:se:liu:diva-665.
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The basic principle for limited companies is that the owners are not liable for the debts of the company. To protect the creditors of the company, however, a theory of personal liability for the owners has evolved, the so called piercing the corporate veil theory. For decades there have been disagreements wether or not it would be motivated to legislate the theory of piercing the corporate veil, and what this legislation might look like. The basic problems in my essay are: Is there a need to legislate the theory of piercing the corporate veil in Sweden? What would such a legislation look like in Sweden? To answer these questions I analyzed cases regarding the piercing the corporate veil theory, examined the theory in the USA and Germany and described how authors would like to answer these questions. My results are that there is a need to increase the liability that a parent company has for the debts of its subsidiary companies. This should be done by changing the rule in 15:3 ABL.
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Siebritz, Kim-Leigh. "Piercing the corporate veil : a critical analysis of section 20(9) of the Companies Act 71 of 2008." Thesis, University of the Western Cape, 2016. http://hdl.handle.net/11394/5522.
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Zindoga, Washington Tawanda. "Piercing of the corporate veil in terms of Gore: Section 20(9) of the new Companies Act 17 of 2008." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/16923.
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Includes bibliographical referencesThe first part of this minor dissertation will examine the historical development of the common law doctrine of piercing the corporate veil, its status and the concerns raised against the rule. In light of the fact that veil piercing erodes the limited liability of a company, it is necessary to appreciate both the relevance and the significance of separate legal personality and the historical development of the doctrine that carves out exceptions to limited liability in this context. The concept of separate legal personality goes hand in hand with the doctrine of veil piercing. This part will further illustrate the various approaches that courts have taken in deciding whether or not to pierce the corporate veil. A criticism of the doctrine is that it comes with no clear guidelines directing courts to the appropriate circumstances for piercing the corporate veil. It will be argued that the courts have relied invariably on a number of discrete, unrelated categories of conduct upon which to base decisions to disregard the corporate personality of a company, but this approach in the end is unsatisfactory. The concept of corporate personality will be discussed in this part in order to achieve a better understanding of the concept itself and to shed some light on the legal nature of the corporate personality. Furthermore, this part will examine recent trends in foreign law in regard to the doctrine of piercing the corporate veil that may serve as guidelines to the interpretation and the application of the doctrine in South African law. Particularly, the English judicial approach to piercing the corporate veil will be discussed. This in turn will lead to a consideration of the question whether further development is necessary, and if so, which direction is best suited for South African company law. The second part of this dissertation will discuss the rules of interpretation, the basic approaches to statutory interpretation followed by our courts and which approach has enjoyed preference in recent judgments. These approaches will assist in the discussion on the interpretation of section 20 (9) of the Companies Act. Section 20(9) will be examined, and the concerns that writers have raised will be discussed. This part will further examine the judgment delivered in Gore with specific reference to the theories of statutory interpretation used, and the final interpretation applied by the court and what effect this has on the existing rules of piercing the corporate veil. It will be contended that courts must interpret and apply section 20(9) in a way that gives effect to the purport and spirit of the Constitution and results in clarity and simplicity in the statutory doctrine of piercing the corporate veil. The fourth and final part of this research will summarize the discussion, where the research will be considered and recommendations made as to how section 20 (9) should be best interpreted. Given the lack of a unified approach to the scope and conditions of application of the doctrine of veil piercing, which allegedly leads to confusion and frequent misuse, this study aims at clarifying the scope of the doctrine and conditions under which it can be applied. It will attempt to clear up some of the mist enveloping the concept of corporate veil piercing.
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Lövrup, Sten. "Ansvarsgenombrott : Särskilt om "processbolag"." Thesis, Linköpings universitet, Institutionen för ekonomisk och industriell utveckling, 2011. http://urn.kb.se/resolve?urn=urn:nbn:se:liu:diva-73943.
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Ett processbolag är ett bolag vars huvudsyfte är att driva en process åt sin huvudman. Enligt huvudregeln i rättegångsbalken skall den förlorande parten stå för den vinnande partens rättegångskostnader. Vid det fall att en person använder sig av ett underkapitaliserat processbolag för att driva processen kan denne person vid en eventuell förlust, försätta bolaget i konkurs och därmed undvika att betala det stora belopp som krav på rättegångskostnader oftast utgör. Huvudregeln i aktiebolagslagen är att vare sig aktieägare eller någon annan skall vara skyldig att svara för aktiebolagets åtaganden. Denna huvudregel stipuleras i aktiebolagslagens 3 kap 1 §. Det har dock utvecklats en princip i praxis för när undantag görs ifrån denna huvudprincip och man ålägger aktieägare eller annan med "bestämmande inflytande" över bolaget ett ansvar för bolagets skulder. Denna princip kallas för ansvarsgenombrott. I doktrin går åsikterna isär när det gäller denna princip. Vissa författare anser att någon praxis som ger stöd för ett ansvarsgenombrottsinstitut inte existerar eller att det åtminstone är omöjligt att dra några säkra slutsatser om en eventuell utformning. Andra författare kan se tydliga principer utvecklade och har även ställt upp kriterier för när ansvarsgenombrott kan anses vara för handen. När det gäller processbolag diskuteras frågan inte i någon vidare utsträckning i vare sig praxis eller doktrin. Med det nya rättsfallet T 3004-08 (Punctatorfallet) har dock frågan fått nytt liv. Det rör sig här om ett enormt utstuderat användande av aktiebolagsformen för att genom ett processbolag undgå ansvar för rättegångskostnaderna i målet. Jag sätter i denna uppsats existerande rättskällor i relation till detta nya rättsfall för att utröna huruvida användandet av ett processbolag är grund för att tillämpa principerna om ansvarsgenombrott eller ej.
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Bailey, Michael. "The doctrine of piercing the corporate veil in South Africa: an analysis of the South African approach with lessons from the Canadian jurisprudence." Master's thesis, Faculty of Law, 2020. http://hdl.handle.net/11427/32583.
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The first principle of a corporation is the right to have separate legal personality independent from the directors and shareholders. The entity becomes distinct from those who incorporate it and those who participate in the active management of the corporation's business. The corporation is owned by shareholders. The shareholders, as the natural persons with ownership rights in the artificial entity, retain obligations distinct from those of the corporation. The shareholders thus cannot be held liable for obligations that the corporations may be required to fulfil, be it primary or collateral, in its business dealings. There is a separation between the company, as a separate juristic person, and its shareholder. The distinction between the company and its shareholders and directors is described as the infamous ‘veil' to separate the corporation from the owners themselves. The benefit of separate legal personality is the second principle afforded to a corporation - limited liability of shareholders. As a general principle shareholders are not liable for the debts of the company. As a separate legal person the company exists in perpetuity despite changes in ownership structure. This makes commercial sense, because ‘the primary purpose for the doctrine of separate legal personality is to encourage entrepreneurship, by shifting the risks of business failure away from entrepreneurs to creditors and other risk bearers'. Managers of the business can take necessary commercial risks without the consequence of individual liability.
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El-Saadouni, Raed. "The liability of groups of companies in Islamic law : a comparative study with common law." Thesis, University of Stirling, 2013. http://hdl.handle.net/1893/18619.
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Groups of companies offer considerable economic and practical advantages over other forms of business organizations. However, the phenomenon creates a long list of problems in terms of antitrust law, tax law, labour law, corporate law, and in the case of international companies, conflict of laws. National laws do not provide a complete solution to these problems because groups of companies are still governed by traditional corporate law, which is designed to govern single independent companies. On the other hand, harmonization of the law of corporate groups across Common legal systems is neither feasible not advisable. The most important problem which has not yet been completely solved by Common law systems is the liability of groups of companies for the debts of their subsidiaries. This has been described as "one of the great unsolved problems of modern company law". The present study aims to analyse the solutions provided by Common law systems to this problem and evaluate if they provide a solid settlement or whether further safeguards are needed for those dealing with corporate groups, namely minority shareholders and outsiders including creditors. By using a comparative approach with the Islamic law system, the study evaluates if the Common law solutions are also applicable in such a religious system or whether, due to its unique character Islamic law needs to create its own solution. This comparative approach assesses the possibilities of harmonization between Common law and Islamic law systems and promotes the Islamisation of modern laws in Islamic countries.
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Cazau, Pierre-Antoine. "La transparence des personnes morales en droit administratif." Thesis, Bordeaux, 2016. http://www.theses.fr/2016BORD0436.
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La transparence des personnes morales en droit administratif se présente comme un argument visant à faire prévaloir la réalité de la situation d’une personne morale sur sa forme. L’argument de transparence entraîne une modification du rapport d’altérité entre deux personnes morales dont l’une est entièrement contrôlée par l’autre : alors qu’elles sont distinctes l’une de l’autre, le juge assimile l’organisme dépourvu d’autonomie à un service de la personne publique. La transparence n’est toutefois pas dotée d’un régime juridique stable et cohérent. L’opération de qualification est accessoire à sa mise en oeuvre, de sorte que les rapports juridiques entre les personnes morales varient. La personne morale n’est regardée comme « transparente » qu’à l’occasion d’un litige pour la résolution d’un problème juridique précis ; elle peut à nouveau être regardée comme distincte de la personne publique lors d’un nouveau procès. Avec cette technique, le juge administratif met en échec les effets de contournement des règles du droit administratif sans créer de règles ou d’exceptions jurisprudentielles nouvelles. Aux côtés du mandat administratif, l’argument de transparence permet de compléter l’arsenal de protection de la compétence du juge administratif et du respect des règles propres à l’administration, dont les effets et la portée peuvent être mesurés et adaptés aux situations. Il permet également aux requérants d’envisager une stratégie juridique susceptible de faire sauter l’obstacle de la personnalité morale de l’organisme que maîtrise totalement l’administrationPiercing the veil of corporate entities in French administrative law appears as an argument which aims at letting the reality of the situation of a corporate entity prevail over its form. This argument of transparency modifies the relation of alterity between two corporate entities in which one is completely controlled by the other: while they are distinct from each other, the judge assimilates the organization devoid of autonomy to a service belonging to the public entity. However, transparency is not provided with a stable and coherent legal regime. The operation of qualification is incidental to its implementation, so that judiciary relations between corporate entities vary. The corporate entity is only regarded as “transparent” in the course of a litigation concerning the resolving of a precise judiciary problem; it can be considered as distinct again from the public entity at a new trial. With this process, the administrative judge defeats the bypassing of the rules of administrative law without creating any new rule or jurisprudential exception. Together with administrative mandates, the argument of transparency allows to complete the arsenal of protection of the administrative judge’s authority and to enforce administrative rules, whose effects and reach can be measured and adapted to situations. It also allows petitioners to consider a legal strategy that may overcome the obstacle posed by the corporate entity of the organization which is completely controlled by the administration
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Silva, Rodrigo Martins da. "A desconsideração da personalidade jurídica no direito tributário: dogmática e análise da jurisprudência brasileira." Pontifícia Universidade Católica de São Paulo, 2015. https://tede2.pucsp.br/handle/handle/6840.
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Previous issue date: 2015-08-28This paper intends to analyse the possibility of applying the lifting of the corporate veil theory to the tax Law. Starting at the basic definitions, the paper‟s objective is to demonstrate the main aspects and fundaments of this theory in order to apply and test them in the subsystem of tax Law, considering its material and procedural particularities. Concluding that it is possible to apply the lifting of the corporate veil to the tax Law, after analysing and conjugating various doctrinaire and jurisdictional understandings, this paper finally aims at offering a critical and comparative analysis between the lifting of the corporate veil and similar institutions. It constitutes a multidisciplinary paper that aggregates institutions and doctrinaire concepts belonging to various Law subsystems, such as the civil, the commercial, the procedural, and mainly, the tax Law, confronting them with decisions taken by Brazilian courts, specially the Superior Court of Justice
O presente trabalho tem como objetivo analisar a possibilidade de aplicação da teoria da desconsideração da personalidade jurídica no direito tributário. Partindo de definições básicas, visa demonstrar os principais aspectos e fundamentos dessa teoria para aplicá-los e testá-los no subsistema do direito tributário, considerando, para tanto, as particularidades materiais e processuais desse subsistema. Concluindo pela possibilidade de aplicação da teoria da desconsideração da personalidade jurídica no direito tributário, após analisar e conjugar diferentes entendimentos doutrinários e jurisprudenciais sobre o tema, visa oferecer, por fim, uma análise crítica e comparativa entre a desconsideração da personalidade jurídica e institutos semelhantes. É um trabalho multidisciplinar, que agrega institutos e conceitos doutrinários pertencentes a diversos subsistemas do direito, como o civil, comercial, empresarial, processual e, principalmente, o tributário, confrontando-os com decisões dos tribunais brasileiros, principalmente os superiores
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Lindblad, Matilda. "Parent Company Liability for Torts of Subsidiaries : A Comparative Study of Swedish and UK Company Law with Emphasis on Piercing the Corporate Veil and Implications for Victims of Torts and Human Rights Violations." Thesis, Uppsala universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-416230.
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The gas leak disaster in Bhopal, India, in 1984 illustrates a situation of catastrophe and mass torts resulting in loss of life and health as well as environmental degradation. The Indian company Union Carbide India Limited, who owned and operated the chemical plant that caused the disaster, did not have sufficient assets to compensate the victims in contrast to its financially well-equipped US parent company Union Carbide Corporation. The courts never reached a decision regarding parent company liability for the subsidiary’s debts arising from tort claims against the subsidiary. However, where the subsidiary cannot satisfy its tort creditors, as in the Bhopal case, questions regarding parent company liability become highly relevant in relation to both foreign and domestic subsidiaries. Therefore, parent company liability for subsidiaries’ torts is discussed in this thesis with reference to Swedish and UK company law and with a focus on the tort creditors’ situation and the business and human rights debate. From limited liability for shareholders and each company being a separate legal entity follows that a parent company is not liable for its subsidiaries’ debts in neither Swedish nor UK company law. These concepts serve the important function of facilitating risk-taking and entrepreneurial activities. However, they also contribute to the problem of uncompensated tort victims arising where a subsidiary is involved in liability- producing activities but lacks assets to compensate the tort victims. Where limited liability and each company being a separate legal entity leads to particularly inappropriate results, the doctrine of piercing the corporate veil in both Sweden and the UK allows the court to disregard the separate legal personalities and hold the parent company liable for its subsidiary’s acts or omissions. The doctrine is characterised by uncertainty and is seemingly only available under exceptional circumstances. The doctrine does little to mitigate the problems for subsidiaries’ tort creditors at large. The business and human rights debate calls for access to judicial remedies for victims of businesses’ human rights violations. As some human rights violations can form the basis of a tort claim, it is relevant to discuss parent company liability according to company law in relation to human rights violations. The United Nations Guiding Principles on Business and Human Rights emphasise the need to ensure that corporate law does not prevent access to judicial remedies. However, the company law regulation of liability in company groups seems in practice to function as an obstacle for access to judicial remedies for human rights victims, particularly when also considering the inadequate legal regimes in some host states and the hurdles of jurisdiction and applicable law in multinational company groups. It is concluded in this thesis that the company law regulation of liability in company groups is seemingly not equipped to meet the challenges arising with the development of company groups, the global reach of the private business sector, the risks of mass torts and the influence of the business sector on human rights.
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Castro, Roberta Dias Tarpinian de. "A função cautelar do incidente de desconsideração da personalidade juridica na fase de conhecimento." Pontifícia Universidade Católica de São Paulo, 2018. https://tede2.pucsp.br/handle/handle/21004.
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The present paper has the purpose of analyzing the reasons why the incident of disregard doctrine established in the cognizance phase has a preventive function. In order to reach the aimed conclusion, the paper will analyze the disregard doctrine by the material aspect, studying why an institute of procedural law, which seeks to eliminate the autonomy of assets existing between a legal entity and its members, preventing third parties from receiving credits for which they are entitled (financial loss), can be set up at a procedural moment where there is still no credit (cognizance phase)
O presente trabalho tem a finalidade de analisar as razões pelas quais o incidente de desconsideração da personalidade jurídica instaurado na fase de conhecimento tem função cautelar. Para chegar à almejada conclusão, o trabalho analisará a desconsideração da personalidade jurídica pelo prisma material, estudando porque um instituto de direito processual, que visa afastar a autonomia patrimonial existente entre pessoa jurídica e seus integrantes, evitando que terceiros deixem de receber créditos aos quais tem direito (prejuízo financeiro), pode ser instauração em um momento processual em que ainda não há crédito (fase de conhecimento)
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Oliveira, André Araújo de. "O incidente de desconsideração da personalidade jurídica e sua aplicabilidade ao processo do trabalho." Pontifícia Universidade Católica de São Paulo, 2018. https://tede2.pucsp.br/handle/handle/21204.
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André Araújo de Oliveira.pdf: 1066674 bytes, checksum: 4fc8e537a27033513c9fcc5fbbdbb3be (MD5)Made available in DSpace on 2018-07-05T12:39:22Z (GMT). No. of bitstreams: 1 André Araújo de Oliveira.pdf: 1066674 bytes, checksum: 4fc8e537a27033513c9fcc5fbbdbb3be (MD5) Previous issue date: 2018-04-27
Coordenação de Aperfeiçoamento de Pessoal de Nível Superior - CAPES
Disregard of legal personality is provided for in our legal system, but until the recent amendment to the Code of Civil Procedure in 2015, without any form of application. Thus, it was up to the magistrate, through provocation of the party, to adopt the procedure he considered most appropriate. The legal forecast of the procedural incident removed the legal uncertainty that existed until then, so that the parties begin to know, in advance, the procedural track to discuss their incidence. In the Labor Procedural Law, there was already an indication of the application of the incident, via a subsidiary invocation of the general procedural rules, including the manifestation of the TST in this sense. Doubts were buried with the labor reform, brought by Law 13467/2017, which was clear in this regard. In order to understand the logic of the incident in this specialized, this thesis proposes the presentation of the principles of the work process, the scope of the civil process subsidiarity to the labor process, with the discussions around this theme, as well as the own institute of the disregard of personality and, of course, by the consequences of its non-observance by the Labor Judge, since even if labor reform had room for discussion, the legal amendment, as already mentioned, leaves no room for understanding other than its observance. It is also proposed to discuss the incident of disregard of the legal personality, invoking the principles that underpin its relevance, the general power of caution and the protection of urgency as a possible justification to avoid the need to install the incident, as well as the official impulse and possible resources to be handled in the reception or request for disregard of legal personality
A desconsideração da personalidade jurídica está prevista em nosso ordenamento jurídico, mas até a recente alteração no Código de Processo Civil, em 2015, sem regramento quanto à forma de sua aplicação. Assim, cabia ao magistrado, via provocação da parte, adotar o trâmite que entendesse mais adequado. A previsão legal do incidente processual afastou a insegurança jurídica até então existente, de tal modo que as partes passam a conhecer, de antemão, o trilhar processual para discussão de sua incidência. No Direito Processual do Trabalho, já havia indicação da aplicação do incidente, via invocação subsidiária das normas processuais gerais, inclusive com manifestação do TST. As dúvidas foram sepultadas com a reforma trabalhista, trazida pela Lei 13.467/2017, que foi clara nesse sentido. Para entendimento da lógica do incidente nessa especializada, esta tese propõe a apresentação dos princípios do processo do trabalho, o alcance da subsidiariedade do processo civil ao processo do trabalho, com as discussões em torno desse tema, bem como o próprio instituto da desconsideração da personalidade jurídica, passando, obviamente, pelas consequências de sua não observância pelo juiz do trabalho. Visto que, até a reforma trabalhista havia espaço para discussão, a alteração legal, como já mencionado, não deixa espaços para entendimento outro que não a sua observância. Propõe-se, também, a discussão do próprio incidente de desconsideração da personalidade jurídica, invocando os princípios que sustentam sua relevância, o poder geral de cautela e a tutela de urgência como possível justificativa para afastar a necessidade da instauração do incidente, assim como o impulso oficial e os recursos possíveis de serem manejados diante do acolhimento ou do pedido de desconsideração da personalidade jurídica
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Longo, Caricielli Maísa. "Natureza jurídica da decisão que julga a desconsideração da personalidade jurídica no processo civil: extensão e limites." Pontifícia Universidade Católica de São Paulo, 2018. https://tede2.pucsp.br/handle/handle/21281.
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Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2018-07-27T13:30:26Z
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This paper deals with the issue of reflecting on the nature, extent and limits of the judicial decision, which recognizes or not the disregarding of the legal personality. Furthermore, it analyzes the impacts that such a decision will create within and out of the legal action in the event of a discussion for a likely inclusion of a partner or partnership, which will depend on the kind of disregarding aimed. Thus, the purpose of this thesis is to analyze the content of the judicial decision that grants or not the disregarding of the legal personality. From a practical point of view, it is important to establish a thesis along this line. In spite of the concern to attain procedural effectiveness, that in most cases is only obtained with the gratification of receiving a credit, as will be shown, this effectiveness cannot be obtained at any price. There is a long-standing crisis in Brazil, a serious crisis of both default and abuse of rights, in which often times, people who should not be held responsible for an obligation, are hit by the simple fact of integrating a society or undertaking an economic activity. Likewise, in relation to the default crisis, there are several devices employed by individuals, who use the veil of the legal person and the inherent autonomy of it to create a look of neatness. This, however, hides an iniquitous attitude in which the partner uses the figure of society to obtain spurious gains. Thus, it is essential to make sure to what extent the decision that disregards the personality of the legal person will affect the partners, what the nature of that decision is, as well as its extent and limits
O trabalho enfrenta o problema de refletir sobre a natureza, a extensão e os limites da decisão, que reconhece ou não a desconsideração da personalidade jurídica, bem como analisa os reflexos que tal decisão produzirá dentro e fora do processo em que foi discutida eventual inclusão de sócio ou sociedade, a depender da forma de desconsideração objetivada. Assim a tese que se propõe tem como escopo analisar o conteúdo da decisão judicial que confere ou não a desconsideração da personalidade jurídica. Do ponto de vista prático, mostra-se importante estabelecer uma tese neste sentido, em razão de que, em que pese a nobreza de alcançar efetividade processual que em grande maioria dos casos só é obtida com a satisfação no recebimento de um crédito - como será demonstrada essa efetividade não pode ser obtida a qualquer preço. Enfrenta-se de longa data no Brasil, uma séria crise tanto de inadimplemento, como de abuso de direitos, em que muitas vezes pessoas que não devem ser responsabilizadas por uma obrigação acabam atingidas pelo simples fato de integrar uma sociedade ou empreender uma atividade econômica. Do mesmo modo, em relação à crise de inadimplemento, vários são os ardis utilizados por indivíduos que se servem do manto da pessoa jurídica e da autonomia patrimonial dela decorrente para criar uma aparência de higidez que, no entanto, esconde uma atuação iníqua em que o sócio se aproveita da aparência da sociedade para obter vantagens escusas. Com isso, é fundamental verificar em que medida a decisão que desconsidera a personalidade da pessoa jurídica atingirá os sócios, qual a natureza dessa decisão, bem como qual a sua extensão e limites
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Machado, Fernando Moreno. "As sanções da Lei de Licitações e a desconsideração da personalidade jurídica." Universidade de São Paulo, 2014. http://www.teses.usp.br/teses/disponiveis/2/2134/tde-27022015-114859/.
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Dissertação voltada ao estudo das sanções administrativas previstas na Lei Federal 8.666/1993 (Lei de Licitações). Apresenta quadro panorâmico das licitações e contratações públicas no Direito Administrativo Brasileiro. Trata do regime jurídico do exercício da atividade sancionatória pela Administração Pública, com destaque para os princípios regentes da matéria. Examina as discussões teóricas, doutrinárias e jurisprudenciais relativas à aplicabilidade das sanções administrativas previstas nos artigos 86 a 88 da Lei de Licitações, como a multa, a advertência, a suspensão temporária de participação em licitação, o impedimento de contratar com a Administração e a declaração de inidoneidade, aí incluindo a competência para imposição de sanções, os sujeitos passivos das penalidades aplicáveis, além das nuances de cada uma delas. Destaca a controvérsia estabelecida acerca das distinções e abrangência dos efeitos das penas de suspensão temporária, impedimento de contratar e declaração de inidoneidade. Estuda a possibilidade de a Administração Pública fazer uso da Teoria da Desconsideração da Personalidade Jurídica, inicialmente em um cenário de ausência de autorização legislativa, como forma de incremento da efetividade daquelas sanções, quando constatado o abuso de direito dos particulares ao constituírem novas sociedades, com o intuito de burlá-las. Examina a Lei Federal 12.846/2013, que trata da responsabilização de pessoas jurídicas pela prática de atos contra a Administração Pública, e suas consequências na seara das licitações e contratações administrativas.Dissertation focused on the study of administrative sanctions under Federal Law no. 8.666/1993 (public bidding Law). It presents an overview of public bidding and public hiring under Brazilian administrative law. It presents the legal regime of the sanctioning activity exercised by public authorities, especially the matter governing principles. It examines the theoretical, doctrinal and jurisprudential discussion concerning the applicability of administrative sanctions established by Articles 86 to 88 of the Public Bidding Law, such as fines, warnings, temporary suspension from participating in public biddings, the impediment to contract with the government and the unfitness declaration, including the power to impose sanctions, the subjects liable of applicable penalties, and the nuances of each one of these penalties. It highlights the controversy about the distinctions and comprehensiveness of the effects related to the temporary suspension, avoidance of contract and declaration of unfitness. It analyses the possibility of public administration adopt the theory of piercing of the corporate veil, initially in a scenario of absence of legislative authorization, as a way of increasing the effectiveness of those sanctions when found abuse of the right of individuals which constitute new associations in order to chouse them. It examines the Federal Law No. 12.846/2013, which deals with the liability of legal entities for the commission of acts against the government and its consequences on the public bids and administrative hires area. Keywords: administrative penalties, sanctions under administrative law, principle of typicality, extension effects of penalties, piercing of the corporate veil.
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Lima, Neto José Gomes de. "A responsabilidade tributária das empresas pertencentes ao mesmo grupo econômico e suas limitações nos planos constitucional e infraconstitucional." Pontifícia Universidade Católica de São Paulo, 2018. https://tede2.pucsp.br/handle/handle/20849.
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Submitted by Marlene Aparecida de Souza Cardozo (mcardozo@pucsp.br) on 2018-02-19T14:54:12Z
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The analysis of tax liability among companies within the same economic group is this paper’s main objective. In order to do so, it was necessary to analyze the autonomy of the legal entity as a legal principle rooted on the Federal Constitution itself. Based upon this premise, the disregard doctrine was studied, focusing on its characteristics and mentions in national material laws, especially article 50 of the Brazilian Civil Code, which is anchored on the so-called “Greater Theory”. Subsequently, comments are weaved regarding unilateral rights, approaching lapsing and prescription, thus defining the legal nature of the right to require the piercing of the corporate veil, as well as its term. The study of taxpayers was also approached as a matter of constitutional content, developing into an analysis of the general theory of tax liability and the constitutional principles that underlie it, such as: legality, contributive capacity, practicability and the due legal process. Furthermore, the procedural aspects of piercing the corporate veil and its natural consequences in tax execution processes are dealt with, which basically is to redirect the debt from the original debtor to the taxpayer, defending the total enforceability of the Piercing The Corporate Veil Incident from the Brazilian Code of Civil Procedure/2015 to Tax Foreclosure Law. In order to do so, case laws were emphasized, also quoting the IRDR from the Federal Regional Court and Ruling PGFN nº 948/2017. Finally, we approach tax liability of companies belonging to the same economic group, highlighting the hierarchy of the Civil Code’s General Tax Laws, as well as the lack of specific norms for the aforementioned liability in the National Tax Code and ordinary legislation, thus establishing its constitutional and infra-constitutional limits
A análise da responsabilidade tributária entre empresas pertencentes ao mesmo grupo econômico se perfaz no objetivo principal deste trabalho. Para tanto, mostrou-se necessário analisar a autonomia da pessoa jurídica enquanto princípio de direito com raízes fincadas na própria Constituição Federal. A partir dessa premissa, estudamos o instituto da desconsideração da personalidade jurídica (disregard doctrine), enfocando suas características, menções pelas leis materiais nacionais, principalmente pelo artigo 50 do Código Civil, que se escora na chamada “Teoria Maior”. Em sequência, tecemos comentários acerca do direito potestativo, da prescrição e da decadência, definindo, com isso, a natureza jurídica do direito ao requerimento da desconsideração da personalidade jurídica, bem como de seu prazo. O estudo da sujeição passiva tributária também foi abordado enquanto matéria de conteúdo constitucional, passando-se, então, à analise da teoria geral da responsabilidade tributária e dos princípios constitucionais que lhe dão suporte, a saber: a legalidade, a capacidade contributiva, a praticabilidade e o devido processo legal. Em sequência, tratamos dos aspectos processuais do instituto da desconsideração da personalidade jurídica e de sua consequência natural nos processos de execução fiscal, que é o redirecionamento da dívida do devedor original para o responsável tributário, defendendo a total aplicabilidade da regulamentação do Incidente de Desconsideração da Personalidade Jurídica no CPC/2015 à Lei de Execução Fiscal. Para tanto, enfatizamos o entendimento jurisprudencial sobre a matéria, citando, também, o Incidente de Resolução de Demandas Repetitivas do Tribunal Regional Federal da 3ª Região e a Portaria PGFN nº 948/2017. Enfim, tratamos da responsabilidade tributária das empresas pertencentes ao mesmo grupo econômico, ressaltando a primazia hierárquica das Normas Gerais de Direito tributário sobre o Código Civil, além da ausência de normatização específica da referida responsabilidade no Código Tributário Nacional e legislação ordinária tributária, estabelecendo, assim, seus limites constitucionais e infraconstitucionais
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Lima, Luciane Pimentel de. "O incidente de desconsideração de personalidade jurídica e sua aplicação no redirecionamento da execução fiscal." Pontifícia Universidade Católica de São Paulo, 2018. https://tede2.pucsp.br/handle/handle/21635.
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Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2018-11-26T10:54:51Z
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Luciane Pimentel de Lima.pdf: 1434579 bytes, checksum: f28dcaab06138d81b730f217e7971e80 (MD5)Made available in DSpace on 2018-11-26T10:54:51Z (GMT). No. of bitstreams: 1 Luciane Pimentel de Lima.pdf: 1434579 bytes, checksum: f28dcaab06138d81b730f217e7971e80 (MD5) Previous issue date: 2018-10-05
This paper’s purpose is to analyze the disregard of legal personality institute, provided for in article 50 of the Civil Code (CC) and that of tax liability, especially that provided for in 135, III, of the National Tax Code (CTN). It will be also studied the possibility of applying the Incident of Disregard of Legal Personality (IDPJ), innovation of the new Civil Procedure Code (Law nº 13.105/2015), regarding the tax foreclosure procedures
O presente trabalho tem por objetivo a análise dos institutos da desconsideração da personalidade jurídica, prevista no artigo 50 do Código Civil, e da responsabilidade tributária, principalmente no art. 135, III, do Código Tributário Nacional, de modo a verificar se a responsabilidade tributária pode ser considerada uma forma particularizada de desconsideração ou se são institutos totalmente diversos. Além disso, será examinada a possibilidade da aplicação do Incidente de Desconsideração da Personalidade Jurídica, procedimento trazido pelo novo Código de Processo Civil (Lei nº 13.105/2015), na seara tributária, principalmente nas execuções fiscais
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Wall, Anna. "Om indirekt- och "indirekt" indirekt skada : Enskilda aktieägares rätt till ersättning vid skadegörande handling av organledamot jämte genomsyn i koncernförhållanden." Thesis, Internationella Handelshögskolan, Högskolan i Jönköping, IHH, Rättsvetenskap, 2012. http://urn.kb.se/resolve?urn=urn:nbn:se:hj:diva-18627.
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I de fall enskilda aktieägare tillfogas skada, genom organledamots handlande, innehar dessa rättigheten att påkalla skadeståndsansvar enligt 29:1 1 st. 2 men. ABL. I den svenska rättstillämpningen ter sig dock tillämpningen av paragrafen, i samband med indirekta skador, problematisk. Problematiken hänför sig till vilka regler, vars åsidosättande, aktualiserar tillämpningen av paragrafen tillsammans med aktieägares talerätt. Två tolkningar kan i fallet identifieras, vilka framförts inom doktrinen, varvid en begränsad och en mer liberal. Även om den liberala tolkningen är förenad med viss problematik, är denna enligt mitt förmenande den vilken bör tillämpas. En sådan tillämpning skulle således innebära att enskilda aktieägare tillerkänns talerätt vid indirekt skada, då regler vilka ger uttryck för normskyddsläran och bolagsledningens lojalitetsplikt åsidosatts. Rättsutvecklingen har vidare givet upphov till frågan, huruvida en ”indirekt” indirekt skada kan omfattas av paragrafens tillämpningsområde. En sådan skada uppstår särskilt i koncernförhållanden då dotterbolaget tillfogas en direkt skada, vilken därigenom åsamkar aktieägarna i dess moderbolag en ”indirekt” indirekt skada. Skadan faller utanför paragrafens tillämpningsområde, då de skadedrabbade inte utgör aktieägare i dotterbolaget. En lösning enligt mitt förmenande, varigenom paragrafens tillämpning koncernanpassas, är att principen om ansvarsgenombrott i betydelsen genomsyn nyttjas. Principens aktualisering medför att ett moder- och dotterbolag betraktas som en juridisk enhet, om erforderliga rekvisit uppfylls, varigenom de skadedrabbade aktieägarna från ett teoretiskt perspektiv även ses som aktieägare i dotterbolaget. Effekten av principens tillämpning är sålunda att en ”indirekt” indirekt skada faller inom paragrafens tillämpningsområde.Whenever individual shareholders inflict an injury, due to action taken by a corporate member, they possess the right to impose liability in accordance with 29:1 1 st. 2 men. ABL. The paragraph is though associated with some difficulties when it comes to an indirect injury. The difficulties regard which rules that have to be infringed, in order for the paragraph to be applicable and thereby providing shareholders with the right to sue. Two different interpretations can hereby be identified, whereby one limited and the other one more liberal. Even if the liberal interpretation is associated with some difficulties, I find that this one should be applied. Such an application would mean that an individual shareholder acquire the right to sue, for an indirect injury, when rules protecting a third person and the corporate member’s duty of loyalty have been infringed. Legal progress has also given rise to another question, whether an “indirect” indirect injury falls within the paragraphs application. Such an injury is mostly affiliated with corporate groups where the daughter company causes a direct injury, whereby the shareholders in the mother company causes an “indirect” indirect injury. Since the shareholder here is not an owner of the daughter company, the paragraph could not be applied. A solution to this problem is, according to me, an application of the principle piercing the corporate veil, whereby the paragraphs application extends to corporate groups. The effect of the principles application is that a mother- and daughter company becomes one legal entity, if the prerequisites are fulfilled. The outcome is hereby that a shareholder in the mother company, from a theoretical perspective, also is regarded to be an owner of the daughter company. Wherefore an “indirect” indirect injury hereby falls within the scope of the paragraphs application.
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Fidalgo, Alexandre. "Ação rescisória por divergência jurisprudencial." Pontifícia Universidade Católica de São Paulo, 2013. https://tede2.pucsp.br/handle/handle/6457.
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Previous issue date: 2013-10-18This study aims to discuss the possibility of rescissory action based on article 485, V, of the Code of Civil Procedure, under the justification of jurisprudential divergence. It defends that the merit decision transited in rem judicatam may be rescinded if it is contrary to prevailing jurisprudence at the time, considering analogous situations and incurred in a similar historical and social moment, under penalty of offense to the principle of isonomy, not applicable the Supreme Court Precedent Nr. 343 as being unconstitutional. Under the same argument, it presents the possibility of rescissory action against decision that does not obey the binding precedent and decision contrary to prevailing jurisprudence determined later. It also defends the possibility of rescissory action against sentence based on rule of law later declared unconstitutional and against decision declaring unconstitutional rule of law later declared constitutional. The study is presented in three main parts. The first one relates to the concepts and legal nature of the rescissory action, its admissibility presuppositions and the traditional assumptions of rescissory action. The second part addresses the issue of the possibility of rescissory action based on jurisprudential divergence. Finally; the third part is dedicated to the concepts of the rescissory action elements (parties, cause of action and claim - ius rescindens and ius rescissorium), as well as it address the jurisdiction and the suspension of effects of the rescinded decision
O presente 'trabalho tem por objeto discutir a possibilidade de ação rescisória, fundamentada no artigo 485, V, do Código de Processo Civil, sob a, justificativa de -', divergência jurisprudencial. Defende que a decisão de mérito transitada em julgado pode ser rescindida se for contrária à jurisprudência dominante à época, considerando situações análogas e havidas em um idêntico momento histórico e social, sob pena de ofensa ao princípio da isonomia, não sendo aplicável a Súmula. 343 do STF, por ser inconstitucional. Sob esse mesmo argumento, apresenta a possibilidade de ação rescisória contra decisão que não obedecer a súmula vinculante, além de decisão contrária a jurisprudência dominante fixada posteriormente. Também defende a possibilidade de ação rescisória contra sentença fundada em norma posteriormente declarada inconstitucional e contra decisão que considerou inconstitucional norma posteriormente declarada constitucional. O trabalho se apresenta em três grandes partes. A primeira diz respeito aos conceitos e natureza jurídica da ação rescisória, seus pressupostos de admissibilidade e as hipóteses tradicionais da ação rescisória. Na segunda parte, aborda o tema da possibilidade de ação rescisória fundamentada em Divergência jurisprudencial. Por fim, a parte final é dedicada aos conceitos da competência da ação rescisória e da suspensão dos efeitos da decisão rescindenda
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Caillet, Marie-Caroline. "Le droit à l'épreuve de la responsabilité sociétale des entreprises : étude à partir des entreprises transnationales." Thesis, Bordeaux, 2014. http://www.theses.fr/2014BORD0234/document.
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Les entreprises sont aujourd’hui au coeur des échanges économiques mondiaux. Ces échanges se traduisent par la mise en place de relations commerciales desquelles peuvent émerger des structures souvent complexes et difficilement saisissables par le droit : les entreprises transnationales. Aucune réponse juridique satisfaisante n’a encore été trouvée pour les encadrer, alors que paradoxalement, la RSE donne naissance à des normes, des outils et des instruments pour les responsabiliser. L’étude de la responsabilité sociétale des entreprises transnationales à travers le prisme du droit révèle en réalité l’émergence d’un cadre de régulation hybride : les normes de RSE s’immiscent dans le droit, conduisant celui-ci à s’emparer de ces normes à son tour. Cet échange permet d’aborder l’entreprise transnationale à travers une approche nouvelle, tirée des normes de RSE, c’est-à-dire à travers son organisation et ses fonctions. Les relations de l’entreprise avec ses partenaires commerciaux deviennent alors une assise potentielle pour le droit, davantage que son statut ou que sa structure juridique, à partir desquelles peuvent être imputées des obligations, aujourd’hui inexistantes. Une fois l’entreprise transnationale saisie, c’est un cadre juridique adapté à son organisation complexe qui peut être mis à jour. L’étude des normes de RSE dévoile un enrichissement des règles applicables à l’entreprise transnationale et un renforcement potentiel de sa responsabilité juridique, fondée sur une approche préventive mais également solidaire du droit de la responsabilité. Passant outre les problèmes posés par l’absence de statut juridique, la RSE permet de saisir les entreprises transnationales par le biais de leurs relations commerciales, et d’envisager la conception d’un nouveau standard juridique de conduite sociétale, générateur d’une responsabilité individuelle et collective fondée sur une obligation de vigilanceCompanies are now at the heart of global trade. These economic exchanges result in the establishment of commercial relationships, from which may emerge structures that are often complex and difficult to grapple with under the law: transnational corporations. While no satisfactory legal framework has yet been established to frame their work, paradoxically CSR gives rise to standards, tools and instruments to ensure their accountability. The study of the social responsibility of transnational corporations through the prism of the law actually reveals the emergence of a hybrid framework of regulation: CSR standards influence the law, forcing the law in turn to take note of these standards. This exchange allows us to handle a transnational business through a new approach derived from CSR standards, essentially through its organisation and functions. The relationship between a company and its business partners then becomes a potential basis for the law, rather than its status or its legal structure, from which can be derived responsibilities. Once a transnational corporation is seized, a legal framework adapted to its complex structure can come to light. The study of CSR standards reveals an enrichment of the rules applicable to transnational corporations and a potential strengthening of their legal liability, based on a preventive and joint and several approach of the law of responsibility. Ignoring the problems posed by the lack of legal status, CSR allows for the regulation of transnational enterprises through their commercial relations and provides a basis for the development of a new legal standard of social conduct, giving rise to individual and collective liability based on a duty of care
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Jiménez, Rojas Francisco. "Los grupos de empresa y la relación individual de trabajo en el marco de una economía productiva descentralizada." Doctoral thesis, Universidad de Murcia, 2012. http://hdl.handle.net/10803/87344.
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La organización productiva descentralizada y flexible que, bajo el impulso de las nuevas tecnologías y la globalización, viene sustituyendo a partir del último cuarto del siglo XX al fordismo de inspiración keynesiana, está deteriorando los mercados laborales, lo que supone una precarización de las condiciones de empleo, un notable repliegue de los «Estados del bienestar» y la desactivación del factor trabajo.
Superado el tradicional principio de «unicidad» empresarial, un empresario «complejo» y múltiple –el grupo de empresas-, caracterizado por su dificultad identificatoria, absorbe un protagonismo creciente, en un contexto normativo-laboral casi desregulado, en el que al margen del fraude, la dirección unitaria de las empresas agrupadas no implica deducir de su funcionamiento una responsabilidad (solidaria).
En esa «cierta unidad económica» que constituye el grupo, se detecta un punto de conflicto o desconexión, entre las facultades empresariales decisorias -unidad de decisión- y las organizativas –dependencia y ajenidad de frutos-.The decentralized and flexible productive organization, boosted by globalization, new information and knowledge technologies, has been replacing the Fordist Keynesian inspiration since the last quarter of the 20th century; besides it has been worsening the labour markets, which involves a precariousness of employment conditions and an outstanding backing down of “welfare states” and job factor neutralization. Once the traditional principle of business uniqueness has been overwhelmed, a complex and multiple –the corporate group- employer arises; this employer is characterized by the difficulty of being identified and acquires an increasingly featuring role, inside a regulatory working context almost deregulated, where, on the fringe fraud, the unitarian corporate group management doesn’t imply deducing a solidarity liability from its activity. Inside that “particular economical unity” made up by the group, a deal-breaker or a gap is detected between the decision-making management faculties –decision unity- and the organizational ones –dependence and another person’s benefits-.
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Lin, I.-Chen, and 林奕辰. "Disregarding the Corporate Entity and Creditor Protection-Focused on the Doctrine of Piercing the Corporate Veil." Thesis, 2013. http://ndltd.ncl.edu.tw/handle/55422495586444607013.
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碩士國立臺北大學
法律學系一般生組
101
Due to the advantages of encouraging private investment and promoting economic development, the corporate entity doctrine and the limited liability principle have become the core value of modern corporate law. However, these principles may be abused. If a corporation’s assets cannot afford its debts, shareholders can easily externalize the insolvency risk to its creditors. Thus, whether these principles should be applied in any case has been called in question. In order to correct the practice of abusing, theories about disregarding the corporate entity come with the tide. Among these theories, the most important one is “the doctrine of piercing the corporate veil” in the United States. This thesis takes “the doctrine of piercing the corporate veil” in the United States as the base, introducing its nature, classified factors, and empirical study of piercing rate, and tries to find out its status of development, range of application , and confronted difficulties. In addition, this thesis also takes relevant theories into discussion, such as ” reverse piercing of the corporate veil”, ”equitable subordination doctrine”, ” enterprise liability theory” and ” substantive consolidation doctrine”, on account of these theories’ goals are also trying to correct and avoid the practice of abusing. Most judges in Taiwan usually refuse to apply the doctrine of piercing the corporate veil in excuse of the doctrine does not be enacted in Taiwan’s Company Act all the time. On January 14, 2013, however, the amendment of Article 154 of the Company Act was approved by the Legislative Yuan. This can be regarded as a huge progress in creditor protection. Nevertheless, there are still some deficiencies of the amendment. How to deal with the relations between the doctrine of piercing the corporate veil and “de facto director and shadow director” and “affiliated enterprise” in the Company Act is another challenge in the future. Besides, since the doctrine of piercing the corporate veil has been enacted in company law, it is worth to observe that whether the possibility of applying the reverse piercing doctrine has been reduced accordingly. At last, this thesis also discusses possible alternatives, such as agency theory, enterprise liability and constructive trust, and makes some suggestions for reference.
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Shih, Yao-Chin, and 施耀欽. "Piercing the Corporate Veil: New Challenges and Visions." Thesis, 2011. http://ndltd.ncl.edu.tw/handle/pbk66g.
Full textAbstract:
碩士東吳大學
法律學系
99
The most highly litigated issue in corporate law is piercing the corporate veil doctrine. The equitable doctrine of piercing the corporate veil is especially relevant in the financial crisis of 2008. The commentator calls the financial crisis as “the great recession”. Many banks and corporations collapsed after existing for decades. The failure of those corporations, those debtors want to know if they will able to recover for the wrongs they have suffered. When the corporate wrongdoer is out of money, plaintiffs often look to related individuals or corporations in an effort to recover for their loss. Although the general principal of limited liability protects parent corporations and individuals running corporations from liability in such situations, the equitable doctrine of piercing the corporate veil permits a court to set aside the corporate fiction and hold an individual or corporate shareholder responsible for the acts or debts of the corporation. The benefit of the limited liability subsidy may be to corporate shareholders and to society more generally, it should not be so broad as to protect illegitimate behavior. In particular, limited liability should not provide the occasion for shareholders to behave opportunistically toward third parties. The premise of the piercing corporation veil is the principal of limited liability which is developed more than a century. First of all, this study justifies limited liability though cost and benefit analysis. And the trend of rapid growth of limited liability companies in America has lead to an expansion of limited liability as a standard entitlement of business. Second, it is important to know what courts actually do with veil piercing claims. The empirical studies could shed light on whether courts are relying on a consistent framework. Generally, courts have developed a number of factors, like fraud, disregard corporate formalities and inadequate capitalization, but those factors are questionable. Such an approach, requiring courts to balance many imponderables, all important but none dispositive, is quite difficult to apply because it avoids formulating a real rule of decision. One commentator argued it is highly unlikely to consistently affect socially beneficial policy outcomes. Instead, veil piercing achieves neither fairness nor efficiency, but rather only uncertainty and lack of predictability, thus increasing transaction costs for businesses. However, current regulation is not enough to deal with all of situations. Besides, considering fairness and deterrence, piercing corporate veil should be preserved. Third, this study propose financially responsible manner in response to the inappropriate factors that courts usually applied to the veil piercing cases. In the parent-subsidiary corporations’ context, courts must consider third parties whose benefit would be harmed if the court pierce the veil. And in the regulated industries context, like banks or insurance companies, the regulatory framework of these industries act to assuage traditional veil piercing concerns such as domination and control, capitalization, questionable inter-corporate transactions, and commingling of assets. Besides, considering the purposes of the regulated industries, commentators agree that veil piercing is inappropriate and that the benefits of strict limited liability should be preserved. Last, this study examined the applicability of piercing corporate veils in Taiwan, and proposed the solution in our legal system.
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Yan, Shang-Siou, and 顏尚修. "Application of Piercing the Corporate Veil in Taiwan." Thesis, 2017. http://ndltd.ncl.edu.tw/handle/82906336963666098253.
Full textAbstract:
碩士中原大學
財經法律研究所
105
Doctrine of Piercing the Corporate Veil had not been established in Taiwan before 2013. It was a common reason why creditors of the corporations were having difficulties in requiring stockholders who abused the corporate legal personality to compensate. The Legislature in Taiwan amended Section 2 of Article 154 of the Company Act and adopted the doctrine of Piercing the Corporate Veil in January 30, 2013. However, the key is to figure out the application of this amendment. Firstly, I need to observe how courts in Taiwan apply and interpret Section 2 of Article 154 of the Company Act. Secondly, I will look into the opinions of the courts regarding the doctrine of Piercing the Corporate Veil before the amendment in 2013, and compare them to the court opinions afterwards. Further, by summarizing the court opinions before and after the amendment, I will explore the difficulties of applying Section 2 of Article 154 of the Company Act nowadays. Lastly, I expect to point out the deficiencies of application of this amendment and propose some ways to help correct the deficiencies by referring to some cases and academic research papers regarding the doctrine of Piercing the Corporate Veil in the U.S. and UK.
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Mthembu, Louis Velaphi. "To lift or not to lift the veil - the unfinished story : a critical analysis of common law principles in lifting the corporate veil." Thesis, 2002. http://hdl.handle.net/10413/5302.
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Lokajíček, Jan. "Společnosti v mezinárodním právu soukromém - piercing the corporate veil." Master's thesis, 2011. http://www.nusl.cz/ntk/nusl-299923.
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The thesis is divided into two parts. The first part deals with the companies in the field of the international private law. After the introduction and general remarks on the topic it proceeds to the recognition of foreign companies in the law of the Czech Republic. Subsequently, personal statute of such companies and its determination is discussed. Next the first part of the thesis focuses on the conditions under which foreign companies can run their business in the Czech Republic. Lastly, the possibility of cross-boarder movement of the companies' seats into and out of the Czech Republic is analysed. The first part of this work takes into the consideration not only the Czech law but also the law of European Union and the relevant case law of the European Court of Justice. The second part of this work deals with doctrine called piercing the corporate veil, which was established in the common law area. It analyses grounds leading to the posibility of aplication of this doctrine in common law area and in German law. The work examines cases of single companies as well as of companies being part of a group of companies. After the analysis of grounds leading to the posibility of use of the piercing the corporate veil follows their generalisation and synthesis. The conclusion of the work is dedicated to...
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Lin, Ching-Chun, and 林靖淳. "The exceptions of the corporate entity doctrine: Starting from "piercing the corporate veil"." Thesis, 2012. http://ndltd.ncl.edu.tw/handle/46850875792676895603.
Full textAbstract:
碩士國立臺灣大學
法律學研究所
100
The corporate entity doctrine and the principle of limited liability are the fundamentals of build up the modern type of company. The misusing of the above principles will do harm to the creditors of the company and accordingly the theory of piercing the corporate veil is developed in the west law to correct the unfair outcome caused ex post facto. However, the categorized conditions which stemmed from the cases and the theories of the United States are always regarded as abstract, unpredictable and without consistent standard. Although the theory of piercing the corporate veil is not good enough to overcome the said shortcomings, it still provides an effective way to solve the issue arising from the misusing of the corporate entity doctrine and the principle of limited liability. Besides, this thesis tries to treat the issue-“The exceptions of the corporate entity doctrine”- in a way not limited to the framework as provided in other articles. Other systems with regard to “the exceptions of the corporate entity doctrine” will be included, such as the theory of enterprise liability, reverse veil piercing, pass-through voting, double derivative suit, pass-through execution of shareholders'' inspection rights and fiduciary duty, which will refer the doctrine and relevant cases from American for further discussion. At last, this thesis will base on the said systems to make the suggestions that if it’s required to import or to legislate for such systems in Taiwan.
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WANG, I.-HUI, and 王怡華. "A Study of Requirements for Piercing the Corporate Veil Doctrine." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/03842558620010870445.
Full textAbstract:
碩士國立臺北大學
法律學系一般生組
102
The corporate entity doctrine and the principle of limited liability are the important doctrines of corporate law. Based on the principle of corporate entity doctrine, a company is a legal entity distinct from its shareholders. It is capable of enjoying rights and of being subject to duties which are not the same as those enjoyed or borne by its shareholders. According to the principle of limited liability, the liabilities of the corporate should be separated from those of its shareholders, and the liability of shareholders for the corporate’s debts is limited to the amount they have paid. The purpose of the principles is to safeguard the shareholders from the risk of business failure, so as to encourage investment and economic development. In order to prevent the abuse of limited liability and the separate legal personality of the company, the U.K. and the U.S. have developed the so-called “piercing the corporate veil”. Under the doctrine of piercing the corporate veil, the court may set aside the company’s formality and hold an Individual or shareholder responsible for the acts or debts of the company. The Taiwanese government introduces this doctrine by amending the Company Act in January 2013. This article will explore the practices of piercing the corporate veil in the U.K. and the U.S. and will analyze the current regulation in Taiwan through a comparative study. The thesis is divided into six chapters , as follows : The first chapter is " Introduction ". The second chapter is " The corporate entity doctrine and the principle of limited liability " . The third chapter is "The introduction of piercing the corporate veil doctrine ". The fourth chapter is "The derivative principles of piercing the corporate veil doctrine " . The fifth chapter is " The practice of piercing the corporate veil doctrine in our Country ". Finally, the Chapter six is " Conclusion".
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Perry, Jonathan. "The commodious veil of nature ecological restoration as corporate landscape architecture /." 1994. http://catalog.hathitrust.org/api/volumes/oclc/31298509.html.
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Mach, Tomáš. "Ochrana investic holdingových struktur a role institutu "corporate veil" v judikatuře." Doctoral thesis, 2010. http://www.nusl.cz/ntk/nusl-299755.
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The current thesis focuses its attention on the arena of international investment protection. Using available case-law, it aims at answering the question as to in what way the nationality of an investor is being determined under international law - in particular in arbitration. Moreover, it aims at determining the impact a chaining of investors from different states into a holding structure potentially has on the arbiters' view when determining an investor's (or an investment's) nationality. The objective of this thesis is to determine to what extend the institution of corporate veil influences the nationality of persons participating on above described holding structures, in terms of how these are viewed in international arbitration and to what extend piercing a corporate veil exists in the arbitral case law. The dissertation is divided into several chapters which, although relatively independent interrelate in the covered subject matter with one another as follows: The first chapter's objective is to introduce the reader into the arena of investment protection and to provide him/her with a historic overview and discussion of international law. In doing so, the discussion starts with the customary regime of diplomatic protection - as defined by E. de Vattel1 in 1759. Then, then the discussion moves...
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JHOU, SIANG-YANG, and 周湘陽. "A Study On The Piercing The Corporate Veil Doctrine-Focus On Affiliates." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/21775631209792261622.
Full textAbstract:
碩士逢甲大學
財經法律研究所
102
There are various business entities engage in modern business activities, and affiliate become more and more popular with the growth of business. Because a corporation is an independent legal person and its shareholders only own the limited legal liability, any modern corporation can shield itself from business risks and divide its assets by forming affiliates. However, such practice might create potential problems. When someone abuses the affiliated enterprises, it will create potential risks to its counterparties in a transaction or even to the public. To avoid the abuse of affiliates, there is a chapter in the Company Act to regulate the affiliates in Taiwan. Although this special chapter regulates many aspects of affiliates, such as the definition of controlling company and an affiliate , the controlling company’s liabilities, and the disclosure requirements of affiliates. Moreover, in 2013 under the efforts of Legislator Hsu, the amended Company Act adopt the Anglo-American legal doctrine, “piercing the corporate veil ” in the Article 154. This research studies the characteristics of affiliates, the regulations of affiliates in Taiwan, the “piercing the corporate veil” doctrine in the U.S., and to enquiry the adoption of the “piercing the corporate veil” doctrine in Taiwan. This research aims to make a recommendation of the practice of the new Article, moreover, a new legal framework on the affiliates.
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Chang, Min-Ching, and 張閔晴. "The Application of "Piercing the Corporate Veil" Principle on Judicial Practices in Taiwan." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/vtjdb3.
Full textAbstract:
碩士嶺東科技大學
財經法律研究所
103
“ The corporate entity doctrine” and “ limited liability” make the public gladly to set up companies and promote commercial prosperity, but any of the system has its flaws, the company system is no exception. In recent years, “ the corporate entity doctrine” and “ limited liability” being abused, cause creditors and trading partners have significant damage, showing the company's system seems to have a little flaw, which makes abuse and circumvent the company's legal scandal. In order to solve the aforementioned problems, the theory of “piercing the corporate veil” is developed in the United States based on equitable doctrine of justice. This article will first discuss the two basic principles “ the corporate entity doctrine” and “ limited liability” of connotation, function and abuse to export that the current prevention and control methods feasible is” piercing the corporate veil” which originated in the United Kingdom and the United States judicial practice. This article will introduce its leading case and to further explore the theory and doctrine development as learn and practice of our future legislation. In the 2013, the amendment of corporation law of Taiwan adopts the doctrine of piercing the corporate veil, to further explore the application of this principle in the case of judicial practice, this article will distinguish “Company Law”, “Tax Law”, “Labor Law”, “Environmental Law” to discussion “piercing the corporate veil” on the Judicial Practice of Taiwan and provides some sugguestions of the statute.
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Bai, Yu-Chun, and 白宇君. "The Comparison of Section 154 II of Company Act Shareholders Abuse of Corporate Personality and Piercing the Corporate Veil Doctrine." Thesis, 2016. http://ndltd.ncl.edu.tw/handle/54702579045016633649.
Full textAbstract:
碩士逢甲大學
財經法律研究所
104
The Company Act consists of two principles by shareholders limited liability company and independent corporate personality, and it provides the courage to shareholders investment to promote economic growth. However, it provides protection for shareholders exempt from accountability, leading to shareholders abuse of Corporate Personality and make company creditors have been infringed. Therefore, the United States and Germany have worked out to expose the corporate veil, denied that the corporate personality makes major shareholders cannot hide behind corporate and pursue its shareholder responsibilities. This study describes that our company introduce to piercing the corporate veil on the Common law and explores the current situation of the section 154 II of our country Company Law amending the law before and after amending the law. The third chapter introduces scholars for Company Law criticism and suggestions. The fourth chapter describes the USA, Germany on the principles applicable Piercing Corporate Veil Doctrine; the Court considered an important factor with respect to the principle of academic criticism and suggestions. The fifth chapter showed that Taiwanese scholars offer insights on the problems generated in provisions, and this text will put forward the views and suggestions for scholar’s opinion. The sixth chapter is this study concludes for Piercing Corporate Veil.
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Phiri, Siphethile. "Piercing the corporate veil: a critical analysis of Section 20(9) of the Companies Act 71 of 2008." Diss., 2017. http://hdl.handle.net/11602/684.
Full textAbstract:
LLMDepartment of Mercantile Law
Once a company is incorporated it becomes a juristic entity, distinct and separate from its incorporators. Thus, the company bears its own liabilities. However, section 20(9) of the Companies Act 71 of 2008 grants the courts the discretion to disregard the separate legal personality of a company where there is unconscionable abuse of the juristic personality of the company. However, the challenge is that the section fails to define what constitutes ‘‘unconscionable abuse’’. This research thus investigated what constitutes unconscionable abuse of the juristic personality of the company as the ground for piercing the corporate veil. Simply put, this research identified the circumstances under which the corporate veil may be pierced, given the confounding provisions of section 20(9). In unravelling the problems posed by the said section, the researcher employed a combination of doctrinal legal research methodology and comparative research methodology which involve the scrutiny of ‘black letter of the law’ and the laws of other jurisdictions. The result from this extensive inquiry is that the term ‘unconscionable abuse’ is a legislative derivate from the various terms used by the courts at common law to justify the disregarding of the separate legal personality of the corporate entity. Therefore, the inescapable conclusion reached is that just as those terms used at common law are confounding, so shall this legislative innovation. Therefore, in order to resolve this problem each matter should be dealt with based on its peculiar facts.
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Kit, Tong Chun, and 湯俊傑. "The Regulation and Introspection of the Doctrine of Piercing the Corporate Veil under Taiwan’s Corporation Law." Thesis, 2014. http://ndltd.ncl.edu.tw/handle/20514153821814818995.
Full textAbstract:
碩士輔仁大學
財經法律學系碩士班
102
Limited liability has been considered one of the most importion institutions of corporation law. Because of the adoption of limited liability, investors are willing to invest. Business activities and economic are also continuing to develop. But when limited liability been used to avoid legal or contract liabilities, the crediotrs of the corporation will suffer huge damages. As a result, the theory of piercing the corporate veil is developed in the US to fix the legal loophole of limited liability. However, the elements and judgement factors are abstract and unpredictable, abolishing the doctrine of piercing the corporate veil has been discussed. Although there are some shortcomings of the doctrine of piercing the corporate veil, it is the most effective way to fix the legal loophole of limited liability so far. Besides the doctrine of piercing the corporate veil, the doctrine of reverse piercing the corporate veil which developed in recent years is also discussed in this thesis. By reviewing the relative cases of the US courts, the elements and the problems of adoption of the reverse piercing the corporate veil will be discussed in this thesis. In the 2013, the amendment of corporation law of Taiwan adopts the doctrine of piercing the corporate veil. This thesis provides some sugguestions of the statute.
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Lee, Chieh, and 李潔. "The Functional Expansion of “Piercing the Corporate Veil Doctrine” and Its Application in International Investment Arbitration." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/90491322330646213892.
Full textAbstract:
碩士國立臺灣大學
法律學研究所
103
Piercing the Corporate Veil Doctrine, as an equitable remedy for the Court to exceptionally disregard corporate personality, has been evolving as the disputes and the facts of corporate form abuse changes over time. This feature is observed and illustrated by the cases of veil-piercing in the earliest ages, the examination elements and factors of instrumentality test (or three-pronged test), and the revised application of Enterprise Entity Theory. Moreover, Piercing the Corporate Veil Doctrine is applied in multiple law fields where abuse of corporate personality or corporate form exists. To further analyze the core value of such Piercing the Corporate Veil Doctrine behind such broad and various application, this thesis attempts to connect the Doctrine with the more basic Principle of Abuse of Rights, and finds that the Doctrine can be expressed by a criteria of “double abuse”: Firstly, an abuse of separate corporate personality, which refers to lack of separate existence in reality but take advantage of the formal existence of separate entity, including the interests of limited liability, asset partitioning, or the independent status to enjoy rights, assume obligations and own property rights under laws, transaction, business operation etc.; Secondly, such abuse of corporate form is used to violate or escape from the object and purpose of the laws at issue. Courts in fact tend to disregard corporate personality in cases when adherence to separate corporate personality would damage the underlying policies or purposes of the law at issue. In the international investment arena, foreign investments are mostly done through corporate form. In order to obtain interests under International Investment Agreements which the investors otherwise are not entitled to, especially the standing to bring an arbitration claim against the Host States, a few investors acquire nationality through restructure of investments. Some tribunals acknowledge that such ‘nationality planning’ might constitute abuse of right, but has been divergent and inconsistent in the examination of abuse of right. This thesis discusses the possibility and suggests that arbitral tribunals can refer to the elements and standards of Piercing the Corporate Veil Doctrine when applying abuse of right in the disputes concerning nationality planning.
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Tshidzumba, Khodani. "Analysis of the "doctrine of piercing of the corporate veil" in South African and selected jurisdictions." Diss., 2016. http://hdl.handle.net/2263/53197.
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HO, CHIA-YUN, and 何佳芸. "The Study on Introduce Reverse Piercing the Corporate Veil by Jurisprudence: Focusing on the U.S. Judicial Decisions." Thesis, 2018. http://ndltd.ncl.edu.tw/handle/2ap99k.
Full textAbstract:
碩士國立臺北大學
法律學系一般生組
106
The 2008 financial crisis brought the reverse piercing the corporate veil principle into our judicial practice stage for the very first time. These cases have been through the legislative process of the principle of piercing the corporate veil. However, the scope of the regulation does not include the reverse piercing the corporate veil, leaving such controversial theory unregulated. Current Company Act not only recognizes one-person companies, but also establishes a new category of company called Close Company to meet the needs for flexibility in corporate law. However, it may also increase the possibilities of misusing the corporate form. Though the piercing the corporate veil has been enacted, the illegal behavior may still change accordingly. Currently, our legal system has no regulations over the reverse piercing the corporate veil. In contrast, reverse piercing the corporate veil has been developed in the United States for more than 80 years. Additionally, the main reference of our legislative process of piercing the corporate veil is the American law, making the US law is undoubtedly the first choice for reference. Comparative method was applied in this thesis to analyze and discuss the trends in the US on the reverse piercing the corporate veil, which provides us some feasible suggestions to estimate whether to import such principle and its possible related issues into Taiwan. This thesis starts with traditional piercing for the similarity of reverse piercing and traditional piercing. Next, the thesis presents the two major classes of reverse piercing claims, insider and outsider reverse piercing, to evaluate reverse piercing cases in a more accurate fashion. Following the examination of various types of cases, this thesis attempts to set forth the factors that should be considered in resolving those controversies. Then the thesis analyzes the recent high profile cases and examines the development of reverse piercing in America. Finally, by comparing the development of reverse piercing in America with our existing laws and regulations associated with piercing the corporate veil issues, this study may serve as a guide for importing reverse piercing the corporate veil in Taiwan.
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Wu, Wen-Ju, and 吳玟儒. "Piercing the Corporate Veil is Enveloped in the Mists of Metaphor-How to Increase the Predictability and Consistency." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/wq27qk.
Full textAbstract:
碩士國立臺灣大學
法律學研究所
103
The corporate entity doctrine and the principle of limited liability are the important inventions in the modern company law. Because of these inventions, the company should be regarded as a independent entity and the shareholders should only be responsible for the money they put into the company. But when someone want to abuse these systems, it is not fair to the company creditor. So the “Piercing the corporate veil“ comes to figure out the problem. Piercing the corporate veil is an equity system, so the court decide to pierce the veil or not all depends on the judge. In this thesis, first introduce the theory of “piercing the corporate veil” and the elements of these theory. Second, introduce the problem of piercing the corporate veil, the problem is because the elements of “piercing the corporate veil” is so abstract, unpredictable and lack of consistent standard. In Taiwan, we amend our Company Act and accept the concept of “piercing the corporate veil” in January 30, 2013. This amendment can solve the court deny to use the “piercing the corporate veil” just because there is no statutory law in our Company Act. This thesis research the all judgments about “piercing the corporate veil” and then analysis these judgments. But is this amendment perfect? This thesis point out the weakness of the amendment and offer the revise of the amendment.
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Chen, Chin-Che, and 陳進哲. "Outsider Reverse Piercing the Corporate Veil With Regard to Substantial and Procedural Issues—on Lehman Brother Litigation in Taiwan." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/7npaba.
Full textAbstract:
碩士國立臺灣大學
科際整合法律學研究所
103
Abstract Lehmen Brother, a multi-national conglomerate, went bankrupt. Investors worldwide who had held the Lehmen Brother minibonds bear severe loss. This reveals new challenges to the existing laws and regulations on the investors’ protection while global finance is becoming more vibrant, at the same time regulations on financial markets gradually deregulated. More often than not, multi-national financial conglomerates set up several subservient companies, divide up the entire procedure of a financial product business into different steps (issuing, quranteeing, selling, brokering…etc), and then assign different subservient companies with these task. As such, the conglomerates can effectively prevent their dominant company from any potential liability due to the shelter of limited liability. Responding to emerging conglomerates, laws and courts have been forced to deal with it. With a series of Lehmen Brother litigations in the Taipei District Court, these litigations brought about new challenges—like, outsider reverse piercing the corporate veil, the judicial jurisdiction on an offshore company, and the choice of law for piercing the corporate veil—to Taiwan legal regime. After reviewing articles and summarizing the court decisions which dealt with outsider reverse piercing the veil in the U.S., this thesis concludes that, as a matter of fact, most of the aforementioned courts recognize the remedy of outsider reverse piercing the veil (hereinafter to “the Remedy”). Thereforem, in terms of a legal transplant, the Remedy can be transplanted. Accordingly, the concern shall be what approach we shall take so as to not only appropriately consider innocent stakeholers but also apply the Remedy more consistently. This thesis submits that we should adopt the “hybrid approach”: when there is no other effective alternatives, in regardless of the existence of innocent stakeholders, the Remedy shall be granted. As for any innocent shareholder, they can be provided with a claim of “capital exemption”. In terms of any innocent creditors, the existing civil law and enforcement law already provide enough protection. There is no need to refuse to grant the Remedy simply because there is an innocent creditor. As a matter of legal transplant methodology, the Section 2 of Article 154, Company Act 2015 (amended) recognizes the equitable principle underlying piercing the corporate veil and also recognizes that the protection to the creditor shall be as important as limited liability principle. The underlying principle of both traditional piercing the corporate veil and outsider reverse piercing the corporate veil is the same. The Section 2 of Article 154, Company Act 2015 (amended) could be substantive applied as a legal basis for the Remedy. Also, after the examination of the U.S. law, there shall be unique considerations for piercing a subservient company’s veil of a corporate group. In this context, some argue that the piercing the corporate veil shall be replaced by enterprise liability theory. Yet, this approach might be even more drastical than piercing the veil. This thesis argues that the focus shall be, in this context, what approach we should take in order to enhance the effectiveness and predictability of piercing the veil. This thesis submits that we could consider the “factual combination” approach to better examine the relation between the subsidiary company and the parent company, such as whether or not they both are hopelessly intertwined, or they still maintain a certain separateness in terms of daily business operation and financial ability. Moreover, the applicability of the theory “piercing the corporate veil” does not limit to substantial issues, but already comprehensively extends to procedural issues in the U.S. courts. This thesis introduces one of the most important procedural issue “jurisdictional veil piercing” and submits that this theory shall be transplanted into Taiwanese legal regime. Hopefully, this thesis will trigger a ripple effect so as to broden the applicability of the piercing the veil to procedural issue in Taiwan, as well as to provoke the reflection to prevailing theory—“Theory of Reverse Inference”—which is the dominant theory in Taiwan on whether a domestic court have a jurisdiction over an international civil litigation. This prevailing theory becomes less capable to deal with the fast-changing global commerce and economic. “Modified Theory of Reverse Inference” shall be considered. Lastly, after examining relavent articles about the choice of law for piercing the veil, this thesis submits that we should take the legislative approach to enact an specific provision for the contention of choice of law for piercing the veil. Prior to the enactment, the court can rely on the Article 1 of “Act Governing the Choice of Law in Civil Matters Involving Foreign Elements”(hereinafter to the Act of the Choice of law) so as to substantive apply the Article 26 of the Act of the Choice of Law. This thesis submit that to some extent both the “general analysis of choice of laws” and “internal affairs doctrine” are inappropriate. Reviewing the Lehmen Brother litigation in Taiwan, the Taipei district court completely ignored the distinctiveness of the choice of law for piercing the veil. This kind of opinion will further leads to the application of the general analysis of “the most significant relation” theory, which, to some extent, will cause vaqueness and uncertainty to the choice of laws for piercing the veil. Concerning that the choice of law needs to take policy implication into account, this thesis submits that, for the choice of law for piercing the veil, the court can rely on the Article 1 of the Act of the Choice of law so as to substantive apply the Article 26 of the Act of the Choice of Law for the subject matter. The decisions and reasonings of the courts in the series of Lehmen Bother litigations in Taiwan was not aware of (1) the difference between traditional piercing and outsider reverse piercing and (2) the unigueness of applying the piercing the veil to corporate groups, as well as (3) the distinctiveness of the choice of law for piercing the veil. Yet, these cases still have signifigance to the Taiwanese legal regime. They are the groundbreaking cases which bring the outsider reverse piercing to light. Hopefully, this thesis can make some contribution to the theory of outsider reverse piercing the veil and its relevant issues, can advance the research among academics on the issues, and, in the long term, and can be a contribution for a better regulation of Taiwan legal regime on multi-national offshore conglomerates. Key Words: Outsider Reverse Piercing the Veil; Piercing the Veil of Corporate Groups; Enterprise Liability; Jurisdictional Veil Piercing; Choice of Laws; Lehmen Brother; Offshore Company; Multi-national Conglomerate.
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"Piercing of the corporate veil : a critical interpretation of section 20(9) of the Companies Act 71 of 2008." Thesis, 2015. http://hdl.handle.net/10210/13173.
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Kostohryz, Milan. "Vybrané otázky překonávání majetkové samostatnosti kapitálových společností ve srovnávacím pohledu." Doctoral thesis, 2012. http://www.nusl.cz/ntk/nusl-309823.
Full textAbstract:
Milan Kostohryz Piercing the Corporate Veil - Selected Issues in International Comparison Abstract The main purpose of the thesis is to give recommendation for possible application of the piercing doctrine in the Czech Republic. Secondary purposes are (i) analysis of effects caused by disregarding the principles of limited liability and separate legal personality because of piercing and (ii) detailed description of approaches to the piercing issue in selected legal systems (USA, UK and Germany). The thesis starts with some terminological issues; it introduces the possible Czech equivalents of the notion "piercing the corporate veil" and explains that it can have slightly different meaning depending on the individual author. The differences stem especially from the questions whether piercing negates only the principle of limited liability or also the principle of separate personality; whether so called inner piercing (Innenhaftung) shall be part of the doctrine and whether the piercing doctrine shall be regarded as product of case-law only. Also some special forms of piercing (reverse piercing, lateral piercing and insider piercing) are introduced. The third chapter analyses the relationship between the piercing doctrine and the principles of limited liability and separate legal personality. In particular it...