反向揭穿公司面紗原則於我國之實踐及應用方向探討—以英美法案例為啟發

反向揭穿公司面紗原則依發動者不同分為內部反向揭穿與外部反向揭穿，前者由股東發動，主張公司權利或為公司提供抗辯，後者則由股東之債權人發動，意在對公司資產取償，與傳統揭穿公司面紗原則同樣屬於衡平救濟之一環。內部反向揭穿在於實現公共利益，外部反向揭穿則與傳統揭穿皆係基於防止公司濫用，由於具有相同的邏輯基礎，法院實務對於外部反向揭穿通常會參考傳統揭穿之測試方法。惟反向揭穿考量之因素更為廣泛，必須平衡相對人之合理期待及第三人之正當權益，故在運用上相對複雜多樣，難以傳統揭穿直接套用。本文以英美法案例為研究對象，涵蓋美國、英國、加拿大及新加坡之案例，蒐羅歷來反向揭穿之指標性判決，根據不同爭點作出類型化區分，進行深入探討及操作分析，以梳理法院思考脈絡，建構清晰的適用藍圖，並介紹美國近年內最新案例，俾充分掌握反向揭穿之發展趨勢。我國於 2013 年明文化傳統揭穿後，迄今已近 10 年，實務適用上並未出現重大窒礙，值此契機，考量公司濫用手法推陳出新，公司濫用型態層出不窮，而債務人利用公司隱匿資產以脫免責任之情形，在現實上絕非罕見，則與傳統揭穿同樣具有防範公司濫用功能之雙子理論—外部反向揭穿，應有思考引進之必要。本文自上開英美法案例中獲得啟發，針對我國法制及實務現況，提出全面性適用架構，包括引進必要、引進方式、判斷標準及注意事項等。具體而言，經利弊分析後決定引進外部反向揭穿，於立法明文前先以法理引進，在最後手段性之前提下與現行法調和，以支配分身、資產混合及不正行為為要件，定性債務人及區分債權人，確保善意第三人權益，對主張範圍及受償順位作限制，衡量其他公司利害關係人利益，俾提供實務操作時參考，並就特定類型案件，如 1 人公司、規避稅負、夫妻財產等，探討其必要性及實益性，作為應用該原則之試金石，最後提出立法建議，期能健全我國公司法制，完善權利救濟體系。

關鍵字

內部反向揭穿；外部反向揭穿；衡平救濟；資產混合； 1 人公司

並列摘要

Reverse piercing the corporate veil doctrine could be divided into two hemispheres, “insider reverse piercing” and “outsider reverse piercing”, each with a respective initiator. While the former is launched by shareholder intents on claiming corporate rights or providing defense for the corporation , the latter is organized by shareholder’s creditors attempting to lay claim to corporate assets as compensation. In a sense, reverse piercing the corporate veil doctrine is on a par with traditional piercing the corporate veil doctrine, and both can be subsumed into the equitable remedy. In terms of purpose, insider reverse piercing is aimed to materialize communal interests whereas outsider reverse piercing—just like traditional piercing—is designed to keep corporate abuse at bay. Since outsider piercing and traditional piercing largely operate on the same basis, the court tends to take traditional piercing mechanisms into account, using them as criteria to examine and test outsider reverse piercing. However, outsider reverse piercing involves a far wider range of variables, necessitating more efforts to strike a balance between the opposite parties’ rational expectations and the third parties’ justified rights. In this regard, outsider reverse piercing is too complicated to be merely viewed through the lens of traditional piercing. Modeling on common law cases, this thesis explores reverse piercing the corporate veil doctrine covering cases from the United States, the United Kingdom, Canada and Singapore, presenting a rich collection of judgments that have thereafter served as an index. Not only have the cases been compartmentalized according to various legal issues, they also offer in-depth analyses that probe into and comb through the contexts of court decisions, presenting the US case studies in recent years to map out the course of reverse piercing development. It has been nearly a decade since traditional piercing was integrated into Taiwan’s legal system in 2013. In practice, the operation of this doctrine is not very obstructed. Take opportunity of this time, it must be noted that the abuse means of companies are continuously updating, and the abuse patterns of companies are emerging in endlessly. Consequently, it is now not a rarity to see debtors take advantage of the corporate system to conceal their assets or to exempt themselves from legal responsibilities. It is essential, therefore, to consider introducing the twin theory of traditional piercing—outsider reverse piercing—so as to hold the abuse of corporate system in check. Inspired by above common law cases, this thesis presents a fully applicable framework tailored to meet the requirements of and the practice in the legal system in Taiwan. Why outsider reverse piercing should be introduced, how it could be introduced, what would be instituted first as the assessment standards and which perspectives must not be overlooked have been altogether discussed in the thesis. To be more specific, outsider reverse piercing should be introduced after weighing the pros and the cons; it should be introduced by jurisprudence before legislation; the doctrine, when going perfectly in sync with the present law, must only be used as the last resort; it must only work when “dominate as alter ego”, “commingling of assets” and “wrongdoing” can be effectively regulated. In addition, this thesis characterizes debtors and distinguishes between creditors. Moreover, in order to protect the rights of bona fide third parties, the range of claim and the order of receiving liquidation should be limited. Along with balancing between the interest of other corporations’ stakeholders and the creditor, discussions are made to assist operation in physical practice. Then this thesis explores on certain specific cases ranging from the cases of one man company, tax-evasion, to matrimonial properties, etc. In general, the aforementioned domains are explored to reveal their necessity and potential practicality, which may serve as the touchstone of the outsider reverse piercing doctrine. In the last part of the thesis, suggestions on legislation are proposed in a hope to further bolster up our corporate law system and to perfect the remedy system.