法律翻译｜刺破公司面纱：格洛丽亚•元圣施诉金志龙案

译者｜曲彩珂 西南政法大学

审稿｜罗兰西 Cornell LL.M.

         曾梓栩 外交学院

编辑｜卢晓洋 香港大学

         王冰子 烟台大学

责编｜扎恩哈尔·阿黑哈提 新疆农业大学

刺破公司面纱：

格洛丽亚•元圣施诉金志龙案

Shih v Ji Yong Kim

§ 80-b [Recovery of property transferred in contemplation of marriage]Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of such transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage which has not occurred, and the court may, if in its discretion justice so requires, (1) award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto, (2) deny judgment for the recovery of the chattel or securities or for rescission of the deed and award money damages in lieu thereof.

This Court properly dismissed the cause of action alleging a violation of Civil Rights Law §80-b. First, the plaintiff failed to demonstrate that the sole consideration for her investment in the music school was a contemplated marriage. Second, the plaintiff has not demonstrated that the statute intended to cover investments in business ventures, such as that at bar, and has submitted no case authority for that proposition. The case cited by plaintiff's counsel, Gaden v Gaden, 29 NY2d 80 [1971] involved the return of real property, which is specifically encompassed by the above statute.

To plead a breach of fiduciary duty, a plaintiff must allege: 1) defendant owed a fiduciary duty; 2) the defendant committed misconduct; and 3) the plaintiff suffered damages caused by that misconduct. A fiduciary relationship arises between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation."

The "relationship between shareholders in a close corporation, vis-a-vis each other, is akin to that between partners and imposes a high degree of fidelity and good faith". This "strict standard of good faith imposed upon a fiduciary may not be so easily circumvented" (id. at 423).  This is especially the case where, as here, the parties have an expectation of marriage, and a bond of mutual trust and reliance.

Here, defendant Kim knew or should have known that the plaintiff relied upon his expertise in finance to manage the business. Notwithstanding his stellar academic credentials, he displayed a surprising lack of discipline and order at record-keeping, segregation of corporate funds from those in his personal account, debt management, and income-tax compliance. He literally abandoned his obligations with regard to the parties' venture when, unbeknownst to the plaintiff, he accepted a full-time position at a proprietary trading company, effectively abandoning his duties at the music school, dooming it to failure. Defendant Kim owed a duty of undivided and unqualified loyalty to the corporation, so as to prevent actions which crippled or injured it.

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Instead, he misappropriated funds belonging to the corporation, he failed to keep any records to account for his expenditures. he used corporate funds for personal purposes, including day-trading. He failed to pay rents and taxes. In short, his actions as Chief Financial Officer of this company are inconsistent with his background with a degree in finance and his current status as a graduate student in finance at Columbia University.

然而，他挪用公款，没有记录他个人花费的公款，他将公司公款挪为私用，进行日内交易。他没有为公司支付租金或者缴纳税收。总之，作为公司的首席财务官，他的行为与他的金融背景和他现在作为一个哥大金融系硕士的身份是严重不符的。

Absent claims of fraud, self-dealing, unconscionability or other misconduct, the business judgment rule limits judicial inquiry into the actions of corporate managers to whether the action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the corporation. In the case at bar, the defendant Kim did not act in good faith when he co-mingled corporate monies with his own, and then left the business to take another full-time position. His actions smack of misconduct, and were not reasonably calculated to advance the legitamate interests of the corporation Accordingly, the business judgment rule cannot be raised as a shield under these circumstances.

Veil-piercing is a narrowly construed doctrine limiting "the accepted principles that a corporation exists independently of its owners . . . and that it is perfectly legal to incorporate for the express purpose of limiting the liability of the corporate owners" .The party seeking to pierce the corporate veil bears the heavy burden of "showing that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury"  Piercing the corporate veil is an equitable concept that allows a claimant or creditor to disregard a corporation and to hold its controlling shareholders personally liable for corporate debts or other liabilities. "Additionally, the corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator's business instead of its own and can be called the other's alter ego"

The concept of piercing the corporate veil is an exception to the general rule that a corporation exists independently of its owners who are not personally liable for its obligations, and that individuals may incorporate for the express purpose of limiting their liability. Where successful invocation of the doctrine of piercing the corporate veil permits, in certain circumstances, the imposition of personal liability on owners for the obligations of their corporation. A plaintiff seeking to pierce the corporate veil must demonstrate that a court should intervene because the owners of the corporation exercised complete domination over it in the transaction at issue. Indicia of a situation warranting veil-piercing include: " '(1) the absence of the formalities and paraphernalia that are part and parcel of the corporate existence, i.e., issuance of stock, election of directors, keeping of corporate records and the like, (2) inadequate capitalization, (3) whether funds are put in and taken out of the corporation for personal rather than corporate purposes, (4) overlap in ownership, officers, directors, and personnel, (5) common office space, address and telephone numbers of corporate entities, (6) the amount of business discretion displayed by the allegedly dominated corporation, (7) whether the related corporations deal with the dominated corporation at arms length, (8) whether the corporations are treated as independent profit centers, (9) the payment or guarantee of debts of the dominated corporation by other corporations in the group, and (10) whether the corporation in question had property that was used by other of the corporations as if it were its own' ".

Likewise, in the case at bar, there was no evidence of adherence to corporate formalities, such as the maintenance of records documenting the purpose for the cash expenditures that appeared targeted for the personal use and benefit of the individual defendant. There were no minutes of annual shareholders meetings, which the defendant testified occurred "every six months." There were no records of receivables, other than a cash book that was conveniently "lost" sometime prior to trial. The evidence was overwhelming that defendant Kim used corporate funds for personal purposes, including day-trading, that he co-mingled corporate monies with his own, and that he essentially performed his duties as Chief Financial Officer in a manner that was calculated to, and actually did, impede the rights of the plaintiff as a shareholder, and doomed the corporation to failure. The Court concludes that he misappropriated funds belonging to the corporation, he failed to keep any records to account for his expenditures, he failed to conduct corporate activities in conformity with corporate strictures, he used corporate funds for personal purposes, including day-trading, he failed to record corporate revenues using a failsafe system which was backed up, he failed to pay rents, thereby causing the corporation to be evicted, he failed to pay taxes, thereby causing a lien and garnishment of the corporation's back account.

Accordingly, defendant Kim "abused the privilege of doing business in the corporate form to perpetrate a wrong" and thus it is appropriate for this court to intervene in equity and pierce the corporate veil . The corporate veil is pierced, as to defendant Kim, and he is jointly and severally liable for any judgment in this matter entered by this Court.

It is well settled law that a shareholder claiming corporate waste or mismanagement of assets may sue derivatively . The Court of Appeals has held that, "[f]or a wrong against a corporation a shareholder has no individual  cause of action, though he losses the value of his investment or incurs personal liability in an effort to maintain the solvency of the corporation" Thus, "allegations of mismanagement or diversion of assets by officers or directors to their own enrichment, without more" reflect a wrong to the corporation and not to the shareholder  individually (Id.) Further, in a similar case involving a closely held corporation with two shareholders each owning 50% of the corporation, the Court of Appeals held that "the fruits of a diverted corporate opportunity are properly a corporate asset."

Here, the plaintiff has sued in her own name, and has not properly plead this cause of action. Accordingly, it must be dismissed on that basis.

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A shareholder, even in a closely-held corporation, may not recover in his or her individual capacity for wrongs against the corporation. Under New York law, "an individual shareholder has no right to bring an action in his own name and in his own behalf for a wrong committed against the corporation, even though the particular wrong may have resulted in a deprecation or destruction of the value of his corporate stock"[citation omitted]; accord Abrams v Donati, 66 NY2d at 953. The rule applies equally to closely held corporations as to large, publicly traded corporations. A shareholder always has standing to sue for harm to the corporation, as long as the suit is brought derivatively, with any recovery going to the corporation. Since, as stated previously, the plaintiff has failed to properly plead this cause of action, and since it is duplicative in any event to the cause of action under which she is already entitled to recover, this cause of action will be dismissed. The Court has reviewed the balance of the plaintiff's causes of action, inter alia, indemnification and punitive damages, and finds that they are without merit, and are therefore dismissed.

By reason of the foregoing, the Court renders its decision in favor of the plaintiff, in the sum of $46,000, the amount of her investment, with interest from January 1, 2012 (approximately when defendant Kim began working full-time as a day trader, thereby abandoning the parties' enterprise).

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The evidence adduced at the trial showed that defendant Kim never intended to honor his obligations to the music school. He set-up the corporation, and then abandoned the music school to have the plaintiff, or his mother and sister, run the business. His actions evidence a gross disregard for the business. He misappropriated and co-mingled funds, maintained little or no financial records, operated the school in a careless manner, all without regard to his status as Chief Financial Officer of the corporation. As a result, the business faltered, and the plaintiff lost her money. This Court finds defendant Kim liable for his negligence and hereby orders that the plaintiff's personal contribution of $46,000 to the music school be refunded.

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