Legal personality
Legal personality (also artificial personality, juridical personalty, and juristic personality) is the characteristic of a non-human entity regarded by law to have the status of a person. A legal person (Latin persona ficta), also legal person, artificial person, juridical person, juristic person, and body corporate) has rights, protections, privileges, responsibilities, and liabilities under law, just as natural persons (humans) do. The concept of legal personality is perhaps one of the most fundamental legal fictions. It is pertinent to the philosophy of law, as well as corporations law (the law of business associations).
Legal personality allows one or more natural persons to act as a single entity (a composite person) for legal purposes. In many jurisdictions, legal personality allows such composite to be considered under law separately from its individual members or shareholders. They may sue and be sued, enter into contracts, incur debt, and have ownership over property. Entities with legal personality may also be subject to certain legal obligations, such as the payment of tax. An entity with legal personality may shield its shareholders from personal liability.
The concept of legal personality is not absolute. "Piercing the corporate veil" refers to a legal decision in which the rights or duties of a corporation are treated as the rights or liabilities of that corporation's its shareholders or directors. Legal persons may not have all the same rights as natural persons - for example, human rights, including the right to freedom of speech.
Although the concept of a legal person is more central to Western law in both common law and civil law countries, it is also found in virtually every legal system.[1]
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Examples
Some examples of legal persons include:
- Cooperatives (co-ops), business organization owned and democratically operated by a group of individuals for their mutual benefit
- Corporations are by definition legal persons. A corporation sole is a corporation constituted by a single member, such as The Crown in the Commonwealth realms. A corporation aggregate is a corporation constituted by more than one member.
- Municipal corporations (municipalities) are "creatures of statute." Other organizations may be created by statute as legal persons, including European economic interest groupings (EEIGs).
- Companies, a form of business association that carries on an industrial enterprise, are usually corporations, although some companies may take forms other than a corporation, such as associations, partnership, unions, joint stock companies, trusts, and funds. Limited liability companies are unincorporated associations having certain characteristics of both a corporation and a partnership or sole proprietorship. LLCs, like both incorporated and unincorporated companies, are legal persons.
- Sovereign states are legal persons.
- In the international legal system, various organizations possess legal personality. These include intergovernmental organizations (the United Nations, the Council of Europe) and some other international organizations (including the Sovereign Military Order of Malta, a religious order).
- Temples, in some legal systems, have separate legal personality[2]
Not all organizations have legal personality. For example, the board of directors of a corporation, legislature, or governmental agency typically are not legal persons in that they have no ability to exercise legal rights independent of the corporation or political body which they are a part of.
Creation and history of the doctrine
In the common law tradition, only a person could sue or be sued. This was not a problem in the era before the Industrial Revolution, when the typical business venture was either a sole proprietorship or partnership—the owners were simply liable for the debts of the business. A feature of the corporation, however, is that the owners/shareholders enjoyed limited liability—the owners were not liable for the debts of the company. Thus, when a corporation breached a contract or broke a law, there was no remedy, because limited liability protected the owners and the corporation wasn't a legal person subject to the law. There was no accountability for corporate wrong-doing.
To resolve the issue, the legal personality of a corporation was established to include five legal rights—the right to a common treasury or chest (including the right to own property), the right to a corporate seal (i.e., the right to make and sign contracts), the right to sue and be sued (to enforce contracts), the right to hire agents (employees) and the right to make by-laws (self-governance).
Since the 1800s, legal personhood has been further construed to make it a citizen, resident, or domiciliary of a state (usually for purposes of personal jurisdiction). In Louisville, C. & C.R. Co. v. Letson, 2 How. 497, 558, 11 L.Ed. 353 (1844), the U.S. Supreme Court held that for the purposes of the case at hand, a corporation is “capable of being treated as a citizen of [the State which created it], as much as a natural person.” Ten years later, they reaffirmed the result of Letson, though on the somewhat different theory that “those who use the corporate name, and exercise the faculties conferred by it,” should be presumed conclusively to be citizens of the corporation's State of incorporation. Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 329, 14 L.Ed. 953 (1854). These concepts have been codified by statute, as U.S. jurisdictional statutes specifically address the domicile of corporations.
Limitations
There are limitations to the legal recognition of legal persons. Legal entities cannot marry, they usually cannot vote or hold public office,[3] and in most jurisdictions there are certain positions which they cannot occupy.[4] The extent to which a legal entity can commit a crime varies from country to country. Certain countries prohibit a legal entity from holding human rights; other countries permit artificial persons to enjoy certain protections from the state that are traditionally described as human rights.[5]
Special rules apply to legal persons in relation to the law of defamation. Defamation is the area of law in which a person's reputation has been unlawfully damaged. This is considered an ill in itself in regard to natural person, but a legal person is required to show actual or likely monetary loss before a suit for defamation will succeed.[6]
Extension of basic rights to legal persons
United States
In part based on the principle that legal persons are simply organizations of human individuals, and in part based on the history of statutory interpretation of the word "person," the U.S. Supreme Court has repeatedly held that certain constitutional rights protect legal persons (like corporations and other organizations). Santa Clara County v. Southern Pacific Railroad is sometimes cited for this finding, because the court reporter's comments included a statement the Chief Justice made before oral arguments began, telling the attorneys during pre-trial that "the court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." Later opinions misinterpreted these pre-argument comments as part of the legal decision.[7] As a result, because of the First Amendment, Congress can't make a law restricting the free speech of a corporation, a political action group or dictating the coverage of a local newspaper.[8] Because of the Due Process Clause, a state government can't take the property of a corporation without using due process of law and providing just compensation. These protections apply to all legal entities, not just corporations.
Germany
Article 19, Paragraph 3 of the Basic Law declares: "The basic rights shall also apply to domestic artificial persons to the extent that the nature of such rights permits."[9]
People's Republic of China
For a typical example of the concept of legal person in a civil law jurisdiction, under the General Principles of Civil Law of the People's Republic of China, "[j]uristic persons are organs which possess the capacity for civil rights and the capacity for civil activity, and in accordance with the law, independently enjoy civil rights and undertake civil obligations."[10] Note however that the term civil right means something altogether different in civil law jurisdictions than in common law jurisdictions.
European Convention on Human Rights
The European Convention on Human Rights extends fundamental human rights also to legal persons, which can file applications with the European Court of Human Rights in Strasbourg in case of a violation by one of the 47 signatory states.
Controversies about "corporate personhood" in the United States
Since the mid-1800s, 'corporate personhood' has become increasingly controversial, as courts have extended other rights to the corporation beyond those necessary to ensure their liability for debts. Other commentators argue that corporate personhood is not a fiction anymore—it simply means that for some legal purposes, "person" has now a wider meaning than it has in non-legal uses. Some groups and individuals (including the American Green Party[11]) have objected to "corporate personhood."
In part as a matter of subsequent interpretations of the word "person" in the Fourteenth Amendment, U.S. courts have extended certain constitutional protections to corporations. Opponents of "corporate personhood" don't necessarily want to eliminate legal entities, but do want to limit these rights to those provided by state constitutions through constitutional amendment.[12] Often, this is motivated by a desire to restrict the political speech and donations of corporations, Lobby groups, lobbyists, and political parties. Social commentator Thom Hartmann is among those that share this view.[13] Because legal persons have limited "free speech" rights, legislation meant to eliminate campaign contributions by legal persons (notably, corporations and labor unions) has been repeatedly struck down by various courts. On January 21, 2010, the Supreme Court of the United States, deciding Citizens United v. Federal Election Commission[14] by a 5-4 majority, removed restrictions on some types of corporate spending in support of (or in opposition to) specific candidates. This dramatically expanded the free speech rights of corporations.
See also
- List of United States Supreme Court cases, volume 118
- Paul v. Virginia ("... in which the United States Supreme Court held that a corporation is not a citizen ...")
- Netscape Communications Corp. v. Konrad for what it means for two entities to be separate
Notes
- ↑ The Juristic Person. I, George F. Deiser, University of Pennsylvania Law Review and American Law Register, Vol. 57, No. 3, Volume 48 New Series. (Dec., 1908), pp. 131-142.
- ↑ Williams v The Shipping Corporation of India (US District Court, Eastern District Virginia), 10 March 1980, 63 ILR 363
- ↑ In Hong Kong, artificial persons are granted the right to vote in functional constituencies elections.
- ↑ These restrictions vary from country to country. Some countries do not permit a corporate entity to be a director or a liquidator while others do.
- ↑ Most commonly in the area of taxation and in relation to search warrants.
- ↑ New Zealand Defamation Act 1992, s 6.
- ↑ See, e.g., Noble v. Union River Logging
- ↑ First Nat. Bank of Boston v. Bellotti
- ↑ Basic Law. Art. 19 Abs. 3 GG
- ↑ Gary J. Dernelle. "DIRECT FOREIGN INVESTMENT AND CONTRACTUAL RELATIONS IN THE PEOPLE'S REPUBLIC OF CHINA." DePaul Business Law Journal, Spring/Summer 1994. (6 DePaul Bus. L.J. 331)
- ↑ Green Party USA Platform
- ↑ For example, the organization ReclaimDemocracy.org has such a proposal on their website
- ↑ Thom Hartmann's website
- ↑ http://origin.www.supremecourt.gov/docket/08-205.htm
References
- Julius Binder, Das Problem der juristischen Persönlichkeit, (1907)
- P. W. Duff, Personality in Roman Private Law, (1938)
- C. A. Cooke, Corporation, Trust and Company: A Legal History, (1950)
- Simeon Guterman, The Principle of the Personality of Law in the Germanic Kingdoms of Western Europe from the Fifth to the Eleventh Century (1990)
- Frederick Hallis, Corporate Personality: A Study in Jurisprudence (1930)
- Raymond Saleilles, De La Personalité Juridique: Histoire et Théories, (1922)
- Alan Watson, The Law of Persons in the Later Roman Republic. (1967)
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