| The implicit shareholder issue has been a major problem that plagued China’s theoretical circles and practice as it relates to the dormant shareholders, significant shareholders, the many stakeholders in the third person, the formation of the complex legal relationship between them, the law is very difficult to find a reasonable balance point between them."Company Law" and can not be on this issue to make a positive, direct, and complete response. Is often reasonable, anonymous shareholders or to circumvent the law, or is unwilling to disclose his identity, are numerous, but no matter for what reasons, judges are not to the absence of legislation refused to make a judgment on this issue. Fortunately, May17,2010by the Supreme Court on the hearing of the enterprises with foreign investment disputes a number of issues the provisions of (a), and since August16,2010, the purposes, of which14to21pairs of hidden The shareholders made the relevant regulations. December6,2010, the Supreme Court and the Supreme People’s Court on the application of the People’s Republic of China Company Law provisions (c)"(hereinafter referred to as the" Companies Act explained") since16February2011date of promulgation. Legislators, three modified, all books will become waste paper."(Germany Jixi Man language), although in theory, the law created strict distinction between the interpretation of the law, but in fact the two often difficult to distinguish, as well as judicial interpretation in fact plays the role of law in our country. Although judicial interpretation to respond to only highlight the problem in real life, still owe exhaustive logically, even inevitably there are unreasonable.This article focus on "Company Law explains the three" discussed (the Supreme People’s Court on the trial of the enterprises with foreign investment disputes in the provisions of (a) applies, only to foreign-invested companies, so the article does not focus discussed, but will occasionally mentioned), is divided into introduction, body, conclusion of three parts, the Introduction in which the body is divided into five chapters. The first chapter of the dormant shareholders to make a general definition, including anonymous shareholders concepts, legal characteristics, classification, and reality causes to make a brief introduction. The concept of anonymous shareholders, the author adopted the broad sense, dormant shareholders, including the protocol type of anonymous shareholders, protocol type, the dormant shareholders (false shareholders). Although the Companies Act explained that "does not protect someone else’s shareholders have an interest as a shareholder, but Ⅰ still make the necessary discourse. Then, Chapter Ⅱ trial from the perspective of comparative law on dormant shareholders comparative study of China’s legislative, judicial provide a reference. Next, Chapter Ⅲ, Chapter IV, respectively, explore the two questions, First, implicit shareholder qualification, dormant shareholders, shareholders’qualifications (for this problem, theorists, there are three views, that is, certainly, deny that, a compromise, the paper endorses a third view, that is a compromise, this view is also the Company Law to explain the three"embodied). Dormant shareholders are entitled to based on anonymous shareholders’agreement shareholders’equity? Dormant shareholders agreement against a third party? False shareholders entitled to shareholder eligibility? This is to be discussed in Chapter Ⅱ. In short, I believe, recognized qualifications for undisclosed shareholders, should adhere to the standards of the"differentiated" to respect the freedom of contract, taking into account the protection of the legitimate rights and interests of bona fide third parties to implement the commercial law of publicity’appearance’concept, the parties The legal relationship between the principal balance of interests and strive to achieve maximum benefits. The second is the protection of the rights of anonymous shareholders. Implicit (significant name) What rights and obligations to shareholders? How to protect their rights? How should regulation of the dormant shareholders the problem? Chapter Ⅲ discussed around these issues. The author believes that China should draw lessons from the common law trust system model to combing undisclosed shareholders’legal relationship. Dormant shareholders and significant shareholders, according to anonymous shareholders’equity to define the respective rights and obligations (including the right to return on assets, the right to participate in corporate governance), a party to breach of contractual obligations (mainly the significant name shareholders), the other party can be held to breach responsibility, but they agreed only constraint the parties, not against the company and other bona fide third. Finally, on the analysis of existing legislation inadequate foundation, the author boldly put forward a sound legislative proposals in the hidden shares, indicating that their point of view. I believe that our current on dormant shareholders legislation is not clear enough, there are loopholes in the law, the legislative level is not enough, the general legislation and special legislation of the dormant shareholders of convergence is not enough, although specific terms to be further discussion, but one by one perfect.The concluding section summarizes, do not expect the China legislation, judicial practice be beneficial, but to able to initiate the community on this issue more attention to. |
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