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Legal person

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Legal person

Not to be confused with Corporate personhood.

To have legal personality means to be capable of having legal rights and duties[1][2] within a certain legal system, such as to enter into contracts, sue, and be sued.[3] Legal personality is a prerequisite to legal capacity, the ability of any legal person to amend (enter into, transfer, etc.) rights and obligations.

Legal persons (lat. persona iuris) are of two kinds: natural persons – people – and juridical persons (also called juristic or artificial or fictitious persons, lat. persona ficta) – groups of people, such as corporations, which are treated by law as if they were persons.[1][4][5] While people acquire legal personhood when they are born, judicial persons do so when they are incorporated (registered) in accordance with law.

Judicial persons

Artificial personality, juridical personality, legal entity and juristic personality is the characteristic of a non-living entity regarded by law to have the status of personhood.

A fictitious person (Latin: persona ficta) (also artificial person, juridical person, juristic person, legal entity and body corporate, also commonly called a vehicle) has a legal name and has certain rights, protections, privileges, responsibilities, and liabilities under law, similar to those of a natural person. The concept of a legal person is a fundamental legal fiction. It is pertinent to the philosophy of law, as it is essential to laws affecting a corporation (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 that composite to be considered under law separately from its individual members or shareholders. They may sue and be sued, enter contracts, incur debt, and own property. Entities with legal personality may also be subjected to certain legal obligations, such as the payment of taxes. 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 looking at the individual natural persons acting as agents involved in a corporate action or decision; this may result in a legal decision in which the rights or duties of a corporation are treated as the rights or liabilities of that corporation's shareholders or directors. Generally, legal persons do not have all of the same rights—such as the right to freedom of speech—that natural persons have.

The concept of a legal person is now central to Western law in both common-law and civil-law countries, but it is also found in virtually every legal system.[6]

Examples

Some examples of legal persons include:

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

The doctrine has been attributed to Pope Innocent IV, who seems at least to have helped spread the idea of persona ficta as it is called in Latin. In the early church, the doctrine of persona ficta allowed monasteries to have a legal existence that was apart from the monks, simplifying the difficulty in balancing the need for such groups to have infrastructure though the monks took vows of personal poverty. Another effect of this was that as a fictional person, a monastery could not be held guilty of delict due to not having a soul, helping to protect the organization from non-contractual obligations to surrounding communities. This effectively moved such liability to individuals acting within the organization while protecting the structure itself, since individuals were considered to have a soul and therefore capable of being guilty of negligence and excommunicated.[9]

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 wrongdoing.

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 19th century, 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,[10] and in most jurisdictions there are certain positions which they cannot occupy.[11] 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.[12]

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.[13][where?]

Usually a natural person perpetrates a crime, but legal persons may also commit crimes. Conversely, at least under U.S. Law, nonpersons such as animals cannot commit crimes.[14]

Extension of basic rights to legal persons

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."[15]

Italy

In Italy trade unions have legal personality, as stated in Article 39, Paragraph 4 of the Constitution:[16]

"Registered trade unions are legal persons. They may, through a unified representation that is proportional to their membership, enter into collective labour agreements that have a mandatory effect for all persons belonging to the categories referred to in the agreement."

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, Chapter III, Article 36., "A legal person shall be an organization that has capacity for civil rights and capacity for civil conduct and independently enjoys civil rights and assumes civil obligations in accordance with the law."[17] Note however that the term civil right means something altogether different in civil law jurisdictions than in common law jurisdictions.

United States

In part based on the principle that legal persons are simply organizations of natural persons, 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.[18] As a result, because of the First Amendment, Congress may not make a law restricting the free speech of a corporation, a political action group or dictating the coverage of a local newspaper,[19] and because of the Due Process Clause, a state government may not 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.

Controversies about "corporate personhood" in the United States

Since the mid-19th century, 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.

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.[20] 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.[21] 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[22] 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

Notes

References

Books

  • J Binder, , (1907)
  • R Saleilles, De La Personalité Juridique: Histoire et Théories (1922)
  • F Hallis, Corporate Personality: A Study in Jurisprudence (1930)
  • PW Duff, Personality in Roman Private Law, (1938)
  • CA Cooke, Corporation, Trust and Company: A Legal History, (1950)
  • A Watson, The Law of Persons in the Later Roman Republic (1967)
  • S Guterman, The Principle of the Personality of Law in the Germanic Kingdoms of Western Europe from the Fifth to the Eleventh Century (1990)

Articles

  • J Dewey, 'The Historic Background of Corporate Legal Personality' (1926) 35 Yale Law Journal 655
  • AW Machen, 'Corporate Personality' (1910) 24 Harvard Law Review 253
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