THE IMPORTANCE OF FINANCIAL FORENSIC EXPERTISE IN DISPUTES DUE TO THE PIERCING THE CORPORATE VEIL

Abstract

The subject of this research is the problem of proving the abuse of a company by members of the company. We are talking about a kind of legal phenomenon called “piercing the corporate veil” or “lifting the corporate veil” or, as the legislator calls it, “abuse of legal entity” which, although it was prescribed by law three decades ago, is insufficiently processed in our legal theory, and only exceptionally applied in judicial practice, despite the fact that it is often the only means of protecting creditors against unscrupulous debtors. Namely, members of capital companies (limited liability companies and joint-stock companies), in accordance with the principle of limited liability, bear the risk for the company’s operations up to the level of their stake, so they are often said to be protected by the “veil” of the company’s legal personality. However, if it is proven in the court proceedings that the member abused the company by abusing it for illegal or fraudulent purposes or disposed of the company’s property as if it were his own property in such a way as if the company as a legal entity did not exist, the “veil” comes down and we enter the field of unlimited, joint liability of the member of the company. Then the member is liable to the injured creditors of the company with all of his assets, not just the founding role. Hence, the institute “piercing the corporate veil” or “lifting the corporate veil” represents a necessary corrective to the concept of limited liability, which contributes to raising the awareness of the members of the company, but at the same time strengthens confidence in the legal order. It is reflected in the sanction against the company member for the committed abuse of the company, in the form of unlimited joint and several liability for the obligations of the company, as if it were the obligations of the company member himself. This abuse can only be proven in court proceedings and the decisive evidence tool in these disputes is a forensic expert opinion by a court expert in the economic profession who has theoretical and practical knowledge, but also experience in the field of prevention and detection of financial pathology. True, financial forensics is considered a profession of the new millennium, and it will take time for its institutional formation in our legal system in general, including in the domain of proving abuse of company.