| The phenomenon of anonymous investment began in the early stage of China's market economy in 1990 s.With the rapid development of market economy,anonymous investment has become more and more widespread,but it also resulted in lots of disputes.However,there was no legal regulations of this phenomenon at that time and courts lacked legal basis in dealing with these disputes.Therefore,some high people's courts issued guidance regulations,but these regulations led to different trial results in similar cases.The Third Company Law Judicial Interpretation was born under the circumstances,Article 24 to Article 26 of which provide direct regulations for the phenomenon and recognize the legal validity of anonymous investment contract.However,anonymous investment involves not only anonymous investors,nominal shareholders but also company,the other shareholders of company and creditors of company,cause the invested object is company,which resulted in a lot of legal disputes.After searching and collating a large number of Supreme Court's judgments,I found that disputes related to anonymous investment are concentrated on confirmation of shareholder qualification and ownership of equity.Anonymous investment involves so wide range of problems that judicial interpretation can not exhaust its ability to solve.For example,the judicial interpretation does not give a clear response to whether anonymous investors can confirm his shareholder qualification.Clause 3 of Article 24 of the interpretation require anonymous investors to obtain recognition of more than half of the other shareholders because the clause aims to maintain human compatibility of the company.But at the same time,it can not be considered as identification standard for shareholder qualification and it should be regarded as one of conditions to confirmshareholder identity of anonymous investors.In addition,there is no clear regulation on ownership of equity of anonymous investment in the interpretation.Article 22 about "equity ownership" only defines burden of proof of the plaintiff in equity ownership dispute.As a result,regarding problems of confirmation of shareholder qualification and ownership of equity in anonymous investment,it is urgent to unify trial standards in judicial practice so as to protect safety of transaction and interests of relevant parties.Accordingly,this article focus on confirming anonymous investor's shareholder qualification of and ownership of equity between different parties.In general,shareholder qualification and equity belong to the same concept;but in the issue of anonymous investment,they might be two different things.Even though anonymous investors exercise shareholder rights actually,they may not gain shareholders qualification eventually.The qualification of shareholders is a concept of identity,so it must be recognized by company and it also requires consent of the other shareholders because of company's human compatibility.In conclusion,it is necessary for anonymous investors who want to confirm his shareholder qualification to obtain agreement with the company and the other shareholders.And the agreement should be expressed to the others.It is the conclusion of the fourth chapter of this article.With regard to equity,compared with shareholder qualification,it tends to be related with external relationship of company.How to solve the problem of equity ownership between anonymous investors,nominal shareholders and the third party? The fifth chapter of this paper makes a response to the problem and proposes several solutions.The principle of solution is to distinguish internal and external relations in anonymous investment contracts and accordingly adopt different methods to different relations.By the above solutions,I am looking forward that the key problems in anonymous investment can be solved in time and all parties' interests can be protected effectively as well.Eventually the solutions can maintain stability of transaction and promote development of companies. |
PDF Full Text Request