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Research On The Protection Of Legal Rights And Interests Of Implicit Investors

Posted on:2020-10-15Degree:MasterType:Thesis
Country:ChinaCandidate:H G YanFull Text:PDF
GTID:2416330575490846Subject:Economic Law
Abstract/Summary:PDF Full Text Request
In the business exchange activities,there are often some investors who use the name of others to replace the self-financing of the target company for various reasons.This kind of "name-separated" investment method shows the freedom of investors to dispose of wealth,has strong flexibility and concealment,and is widely used in business activities such as setting up companies and transferring shares.However,the disputes caused by this type of investment have also increased.At present,there are fewer normative documents on the implicit investment behavior in China's laws.Although the Judicial Interpretation of the Company Law(III)issued by the Supreme People's Court in 2011(hereinafter referred to as Interpretation 3)made the first provision for anonymous investment,it provided general judicial judgment rules for a large number of disputes that have arisen,and has judicial practice.Great significance.However,careful consideration of the provisions of Articles 24 and 25 of the Interpretation-the definition of the validity of the anonymous investment agreement,the attribution of the equity of the anonymous investor and the change of the equity,it seems that the two articles can be found to be logically different.The ambivalence of the interpreter dealing with the problem of anonymous investment.First,Article 24,paragraphs 1 and2,in the identification of the anonymous investment agreement and the attribution of the equity of the anonymous investor,the legislator prefers to apply the general rules of the contract law to regulate the shareholders of the anonymous investor.The criteria for judging the qualifications are adopted;secondly,Article 24,paragraph 3,and Article 25,in the determination of the issue of equity changes,the legislators tend to follow the rules of the company law,resulting in the shareholder qualification of the anonymous investor.There is a substantive judgment standard on the determination.It is true that the legislators have combined the two essential points of view in the dispute over equity confirmation rights under the implicit investment,and are committed to balancing the interests of the various subjects.However,the essence of this is that it fails to recognize the essence of equity,or is bound by the traditional thinking of who "who pays,who owns,who has shareholder qualifications",neglects the difference between equity andshareholder qualification,and treats equity ownership.The above is always based on the premise of the qualification of shareholders,and the personal rights and property rights in the equity are bundled together.The anonymous investment agreement is the legal relationship formed by the party's autonomy.Legal relationship is the basis for the exercise of rights.The parties can obtain the legal benefits derived from the rights through the power of rights.As an independent right,equity includes the property part and the personal part.In fact,the implicit fund-raising agreement governed by the provisions of Article 24 of the Interpretation 3 gives the anonymous investor the equity income and the shareholder qualification of the anonymous investor,and distinguishes the two relations in the application of the law.However,the interpretation of Article 25 also binds the two parts of the equity together.In combination with the characteristics of anonymous investment,if the personal interests and property interests in the equity are separated,that is,the personal interests of the equity are attributable to the nominal shareholders,and the equity proceeds are partially attributed to the anonymous investors,then the nominal shareholders are deemed to be in good faith.The acquisition system is divided into two parts.The nominal shareholder dispositions the shareholder qualifications as part of the right to dispose of,and the disposal of the equity proceeds is unauthorised.This distinction can better explain the dilemmas before and after the three Articles 24 and 25.Therefore,if the "shareholding theory" or the separation of equity interests is adhered to in the system of anonymous investment,it has great practical and theoretical value.In addition to better explaining the dilemma of the interpretation of Articles 24 and 25,it is difficult to interpret the difficulty of determining the qualification of shareholders under the implicit investment;it can also better solve the problem of the change of equity in the current equity change mode.The debate on the effective time;the maintenance of the company's humanity can also promote capital flows,thereby better protecting the legitimate rights and interests of anonymous investors.In addition,it can also be applied to the issue of shareholding in stock companies.At present,there are still many problems in the protection of the rights and interests of anonymous investors in China's legal level.First of all,the legislation of theCompany Law of China only gives a number of evidences to the determination of the qualifications of shareholders.In theory,the discussion on the qualification standards of shareholders is also divided.Interpretation 3 is also inconclusive as to the identification of anonymous investors,or there are some logical paradoxes before and after,which brings uncertainty to the resolution of practical disputes.Secondly,the type of anonymous investment itself is complex and diverse.The judicial interpretation is also regulated on one of the types.For the specific complex cases in practice,the differences between the theoretical and practical ones are undoubtedly exacerbated.The dilemma of the protection of the rights and interests of investors.Finally,in recent years,China has been perfecting the "Company Law" and the latest introduction of relevant judicial interpretations,but the shortcoming is that the law only stipulates shareholders' rights,but the determination of the connotation of shareholders is not limited.Whether it is possible to give a legal status to a hidden investor,whether it is possible to refer to the nominal shareholder's rights,such as whether the shareholder's disposition of the shareholder is subject to judicial freezing or enforcement,whether or not an objection can be filed.Based on the above several aspects,it is proposed to improve the idea of??protecting the rights and interests of anonymous investors.First,from the theory and practice,the shareholders' identity standards of anonymous investors are uniformly determined.For the lack of current legislation,the formal and substantive proof order should be adhered to.That is to say,under the premise that the anonymous investment agreement is valid,the nominal shareholder shall be judged to have the shareholder qualification in the form of the register of shareholders;if the current evidence is flawed or missing,it shall be examined whether the anonymous investor actually exercises the personal meaning.Shareholder rights,such as attending shareholder meetings,business management,etc.When the anonymous investor tried these corporate affairs,it indicated that the anonymous investor was absent.The company also recognized that the anonymous investor at this time has the status of shareholder.Second,the risk exposed in most of the current equity holding disputes is that the anonymous investor has not signed an entrusted shareholding agreement or entrusted investment agreement with the nominal investor.Therefore,in this sense,since the contract is free for bothparties The expression of the will,when the parties reach the relevant agreement,try to agree on the rights and obligations and responsibilities between the two parties.Third,judging from the substantive characteristics of the anonymous investment,the identification of the anonymous investment agreement as an equity trust is equivalent to grasping the essence of the anonymous investment agreement-the ownership of the equity interest.Under the separation mechanism of equity interests,the application of trust rules can better explain and regulate the problems arising from anonymous investment,and better balance the interests of all parties.
Keywords/Search Tags:Implicit capital contribution, Shareholder qualification determination, Equity interest separation mechanism, Equity trust
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