| In 2011,the Supreme People’s Court promulgated the "Regulations on Several Issues Concerning the Application of the Company Law of the People’s Republic of China(III)",The issue of hidden shareholders is included in the scope of judicial interpretation to be regulated.This interpretation provides a legal basis for the anonymous investment behavior,but does not form a systematic and complete regulatory system for the specific disputes between the relevant parties.Shareholders’ rights and interests disputes involving hidden shareholders have emerged,and the proportion of cases of right to know directly filed by anonymous shareholders to protect their rights has increased significantly.The 2017 Interpretation of Company Law(4)further refines the litigation rules for shareholders’ right to know.However,due to the lack of uniform identification standards and legal norms,various district courts and even different trial judges in the same case have adopted different rules of refereeing for cases of informed consent initiated by anonymous shareholders.From the judicial adjudication,we collected the right to file litigation cases filed by the anonymous shareholders in recent years,and summarized their overall characteristics and refereeing rules.They analyzed the different views of the courts in trying this type of case,mainly supporting the anonymous shareholders to directly exercise their right to know and deny.It has two kinds of right to know.Under the premise of recognizing the right of the anonymous shareholders to know,how to exercise the right,the local courts also hold different views.This concludes the core controversy of this type of case in judicial practice: Whether the anonymous shareholder has the right to know is the subject qualification,and how the right to know should be realized.On the basis of collation and analysis,the judicial dilemma of this type of case is further proposed:(1)Insufficient legal provisions,failing to clarify the concept of anonymous shareholders and their qualification criteria;(2)It is difficult to form a practical protection for anonymous shareholders;(3)The standards of the referees are different.The guidance opinions of the localities are parallel with the judicial interpretations across the country,which results in whether the anonymous shareholders have the right to know the subject of the litigation and the judicial chaos of the different names of the anonymous shareholders.The right to know is a separate inherent right of the shareholders to the company.Whether the anonymous shareholders can directly exercise the right to know is based on the premise of their shareholder qualification.The shareholder qualification is different from the confirmation of the shareholder’s identity.On the basis of clarifying the value objective and the nature of the shareholder’s right to know,combined with the basic meaning of the anonymous shareholder,the qualification conditions are improved: The anonymous shareholder must actually contribute and become the company’s capital;more than half of the company’s internal shareholders recognize it;it does not harm the interests of third parties outside the company.Then clarify the specific implementation of the specific type of anonymous shareholders’ right to know,and provide theoretical support for the construction of referee rules.Generally speaking,according to the principle of contractual relativity,the shareholders’ rights of the anonymous shareholders can only be exercised by the prominent shareholders.Only when a small number of hidden shareholders satisfy the conditions for determining the qualifications of shareholders or according to special provisions of the law can directly exercise the shareholders’ right to know.Finally,suggestions for judicial improvement are proposed for the judicial dilemma of this type of case.Although some anonymous shareholders have the subjective intention of circumventing the mandatory provisions of the law,the anonymous investment has an irreplaceable role in relieving the company’s financing pressure,giving full play to market utility and promoting economic development.Under the current legal framework,the case of the anonymous shareholder’s right to know should balance the interests of the company,the anonymous shareholder and other shareholders,and adhere to the principle of the charter,the company agreement,and appropriate interpretation of Article 24,paragraphs 1 and 3 of the Interpretation of Company Law(III),Strictly identify the equity holding situation,and refine the famous path from the content and procedures;At the level of litigation rules,it is recommended to restrict the plaintiff’s subject qualification of the anonymous shareholders,insist on the identification criteria of different hidden shareholders within and outside the country,and further refine the informed shareholders’ opinions from the aspects of exercise,subjective purposes and restrictions.The exercise of the right to effectively protect the investment interests of the anonymous shareholders. |
