On The Legislative Protection Of The Interests Of Invisible Shareholders

With the development of the socialist market economy,anonymous investment behavior is becoming more common in practice.Although the "Company Law" and "Company Law Interpretation(3)" have regulated the issue of anonymous investment,it shows that the law This kind of investment form is recognized,but the system has not yet formed a complete protection mechanism for anonymous investors.This article attempts to explain how to improve the existing legal provisions for the protection of the interests of hidden shareholders through four parts:The first part mainly introduces the concept of anonymous shareholders.An anonymous shareholder refers to a person who obtains the rights and interests of the company's shareholders and fulfills the investment obligation to the company,but in the shareholders' register,business registration and other materials,the person registers the equity.Then,it summarizes the four characteristics of the hidden shareholders that have fulfilled their investment obligations to the company,the personal information has not been publicly disclosed,the corresponding equity is general,and there are no-shareholding agreements between the hidden shareholders and the nominal shareholders.Finally,it analyzes the causes of hidden shareholders,including the need to evade the needs of laws and regulations,the investor's passively becoming a hidden shareholder for reasons such as the protection of personal privacy,and registration errors by the registration authority.The second part makes a comprehensive review of the current laws on hidden investment in China,and points out the loopholes and deficiencies of the existing laws on the basis of affirming that it has protected the rights and interests of hidden shareholders,including whether the hidden shareholders With the qualification of a shareholder,how to determine its identity has notbeen clarified;the procedure for the hidden shareholder to be named is not rigorous;how to protect the rights and interests of the hidden shareholder is still lacking in protection mode.The third part first explores the legal provisions for anonymous shareholders in different countries of the Anglo-American legal system and the civil law system and the methods for responding to the problems raised in the second part.It is concluded that the trust treatment of the anonymous capital contribution in the Anglo-American legal system,the commercial appearance principle of the civil law system to resolve the issue of the qualification of the anonymous shareholder,and the complete anonymous capital contribution procedure can all be used for reference in China.In the fourth part,the author puts forward legislative proposals on the protection of the rights and interests of the hidden shareholders.The first is based on the introduction and comment on the main points of "formal theory","substantial theory",and "eclectic theory" of the qualification confirmation,Established the standard of "form exception theory" to determine whether an anonymous shareholder has shareholder qualifications.Secondly,it is proposed that the transformation of anonymous shareholders into obvious shareholders should be based on the preemptive rights of shareholders,and further clarify the conditions for the realization of the anonymous shareholders.Third,through the evaluation and analysis of the three major protection models of anonymous agency,anonymous partnership,and equity trust,it clarified the legitimacy of the protection of the equity of the shareholders in China and the introduction of the equity trust protection model,and completed the construction of the content of the equity trust protection model.