Research On Legal Issues Of Anonymous Holdings

Anonymous shareholders are those investors who have contributed to the company or subscripted funding, but have been displayed as others in the company registration. Those who have commissioned on behalf of the shareholder to circumvent the legal prohibitions are not company's hidden shareholders. Significant shareholders mean the acceptance of anonymous shareholders, commissioned on behalf of its shareholding in the company registration organ registration records the identity of its shareholders, shareholders, substantial shareholders of the shares under the name of all or part of the contribution to the company from others, or subscription funded.There are so many anonymous holding companies in our country. No rules are found in China's legal and judicial interpretations. There are only some Higher People's Courts such as Jiangsu and Shandong which have made rules about it under their own jurisdiction. Accordingly, there are different attitudes to the kind of case in different courts at present. Similar court cases often lead to very different outcome. It is necessary for China to make its own the legal systems of implicit holdings based on its own actual situations and learning from foreign countries and China's Hong Kong and China's Taiwan region.Anonymous ownership is originated from the silent partner. There are many types of reasons on anonymous ownership: state-owned enterprise restructuring process and to circumvent China's Company Law on the limited liability company's shareholders shall not exceed the 50 provisions of the use of anonymous shareholders, private enterprises for the safe and convenient for employees equity-based incentives interests tied up with the needs of anonymous shareholders, a number of closely linked and stable relationship for the management of convenience between the use of anonymous shareholders, Taiwanese businessmen in China, China to circumvent restrictions on foreign investment and to avoid of double taxation and the use of anonymous shareholders, in order to protect privacy or trade secrets and business strategies that require the use of anonymous shareholders, in order to obtain some preferential policies and the use of anonymous shareholders, in order to circumvent our laws and regulations on investment principal restrictions on use of anonymous ownership and so on. In the form of paper through a case analysis of the characteristics of hidden were held, mainly include: generally based on anonymous investors were investors with significant holdings of the contractual relationship between the commission and production, commissioned by holding the contract is the practice contracts, implicit shareholders The contribution or subscription of the investor should be invested as part of the company capital, implicit shareholder is mainly used currency financing, hidden from the outside to see the Department of shareholders through substantial shareholder holds an indirect stake in the company and other shareholders of the implicit shareholders are mostly aware of the existence of hidden in the shareholders for their right to undisclosed to shareholders subject to certain restrictions, but shareholders of the same duties and other shareholders.There are not only legal basis - in line with contractual freedom and autonomy of private law wishes ,but also legal affirmation-China's Corporation Law does not expressly prohibit anonymous shareholders in protection of anonymous shareholders rights and substantial shareholders rights, "no legal prohibition that is freedom." Register of shareholders in China should be used mainly industrial and commercial registration, supplemented by the shareholders of accreditation standards. Judging from the current trial shows that, in our courts follow the implicit holdings of the problem of "double standards, differentiated" principle is the mainstream view, but I think that regardless of what criteria should be identified and significant hidden shareholder shareholders a shareholder qualification.Protection to dormant shareholders rights and significant shareholders right must be based on some principles. Holding the contract should be based on commission and the company's industrial and commercial registration, respectively, confirmed the company's undisclosed shareholders and the shareholders of substantial shareholders qualifications; should be based on a contractual agreement, commissioned by shareholders to determine implicit shareholder and substantial shareholder rights and obligations between the relationship, to determine anonymous shareholders and substantial shareholders of the distribution of the rights of shareholders; should be based on the law and the commission held the contract to determine implicit shareholders and substantial shareholders of the company and third party obligations; been done if the commission held a contract agreement or agreement is not clear, according to the law can not be determined, they should first guide, allowing anonymous shareholders and significant shareholders to continue unsuccessfully to negotiate, according to the principle of fairness to referees. The law is not to provide unlimited protection of undisclosed shareholders and substantial shareholders the right to protection of their rights must not be inconsistent with provisions prohibited by law and public order and good morals and do not violate the company and the legitimate interests of other shareholders do not harm the legitimate rights and interests of bona fide third parties for the limits.China's Supreme People's Court are making the Third judicial interpretations of the company law, so the last part of the paper were held involving a number of issues implicitly puts forward the countermeasures recommendations.(1) company shareholders accreditation issues: the law should compulsory provisioning register of shareholders, and to adopt a register of shareholders mainly supplemented by a company registered eligibility criteria for the identification of shareholders, so that not only protects the right of choice of shareholders, but also take into account the well-intentioned third party interests.(2) the demand of anonymous shareholders to become significant problems: unless otherwise provided, shall in accordance with the significant hidden shareholder agreement between the shareholders to determine the allocation of rights and obligations of shareholders. The law shall protect undisclosed shareholders to significant names and significant shareholders refused to continue remarkable name of freedom. (3)significant shareholders to transfer their ownership to a third person effect or set up a security problem: significant shareholders to transfer their bona fide third parties on behalf of anonymous shareholders equity, or on behalf of the anonymity of their shareholders equity to bona fide third were set up security, with the force of law, but the implicit shareholders the right to demand compensation for their losses significantly shareholders.(4) the creditors of a significant shareholder recourse debt and demand the implementation of substantial shareholders under the name of equity issues: Shareholders, creditors have the right to require that substantial shareholders holding the company's stock price to repay the debt variable, but the significant shareholder or implicitly shareholder can prove that the creditor knew the debtor's debts as they arise as a significant shareholder of the exception. (5) whether the substantial shareholders should bear the name of shareholders or other hidden flaws in funding the liability of shareholders: shareholders flawed funding, and significant shareholders to the company and third party liability. However, the company informed shareholders can not claim the rights to the obvious. (6)under the law, creditors of the company to the shareholders of the Company and involves the implicit claim a debt holdings of the problem: The company creditor is entitled in accordance with the provisions of relevant laws and claiming rights to the shareholders, and may require significant shareholder and undisclosed shareholders, jointly and severally liable. However, creditors of the company's prior knowledge that there is significant shareholder, the substantial shareholder exemption.(7)the anonymous shareholders, substantial shareholders on how to bear the responsibility for liquidating the company corresponding to the liquidation of problems: an implicit shareholder corresponds to the liquidation of the company bear the primary responsibility for the liquidation, shareholders bear significant additional responsibilities. But creditors when dealing with the company knowingly took place substantial shareholders exist, and significant shareholders to the creditors of exemption. (8)a violation of the law prohibitions holdings of the legal consequences of the implicit question: to circumvent the legal prohibition of the client, the trustees are not eligible to have the shareholders should be handled after the acquisition of its equity capital reduction procedures, as a result of denying its shareholders eligible to will lead to corporate companies do not meet the eligibility conditions, the equity nationalized. It should be the confiscation of their illegal gains holding period and given a fine.