Protection Of Third Party Interests Under Anonymous Investment

Several provisions of the "Company Law Interpretation(3)" regulate the dispute over the anonymous investment of limited companies,but the promulgation of this provision does not stop the academic circles from discussing such issues.How to realize the balance of interests of the parties under the anonymous investment has become a subject of practical significance and academic value.This article is divided into four parts around the protection of the interests of third parties under the anonymous investment of a limited company.The first chapter is mainly to explain "anonymous funding" and "third party",because these two are the basis of this article.First of all,this chapter expounds the meaning,characteristics and classification of anonymous investment.Secondly,it analyzes why the behavior of the anonymous investor and the nominal investor will involve the interests of the third party,and defines the third party in detail.The second chapter is empirical research.This article collected from the "China Judgment Documents Network" the judgment documents made by Guangdong courts from January 1,2011 to December 31,2019 related to the third party’s anonymous investment.In a total of 122 valid case samples,there were 14 internal disputes between anonymous investors and nominal investors,accounting for 11.5%,and 108 disputes involving third parties,accounting for 88.5%.After understanding the general situation of judicial practice,this article further analyzes the controversial focus of the practice of anonymous investment disputes.The third chapter is the legal analysis of the protection of the interests of the third party under the anonymous investment of the limited company.In practice,the transfer of equity is mainly carried out in the form of legal actions,and the protection of transaction security is also limited to legal acts of transaction nature.Therefore,the mode of equity change is discussed.This article believes that the intentional equity change under the action of disposition should be adopted mode.The "name" and "real" of the equity under theanonymous investment have been separated,and the intentional shareholding change mode under the action of disposition makes the time point for the shareholding change to take effect and the publicized time node,and this means that the shareholding has The possibility of being "disposable".In order to avoid potential harm to potential parties to the transaction,two announcements should be established for the register of shareholders and the registration of the company registration authority,and on this basis,the shareholder’s register should be given presumptive effect and the company registration authority should be confronted.Publicity and the evaluation of the effectiveness of publicity by law means that "making appearance" and "understanding appearance" constitute the two major legal obligations of the transaction body,and this can also prevent the transaction parties from being exposed to unexpected damage caused by the inconsistency of the appearance of equity rights and the facts.For a specific situation,the key to the balance of interests between the anonymous investor,the nominal investor,the company and other shareholders,and the creditors(the company ’s creditors,equity assignees,and nominal creditors)lies in the identification of shareholders ’qualifications,and The determination of shareholder qualifications should be based on the combination of basic relationships(substantial requirements)and the register of shareholders(form requirements),and distinguish between two types of fully anonymous investment and incomplete anonymous investment.This article believes that under the type of completely anonymous investment,the nominal investor is the company’s shareholder,and the anonymous investor only has a relationship of debt and debt with the nominal investor.In the case of incomplete anonymous investment,the anonymous investor is a shareholder of the company,and the nominal investor only plays a role of naming.The fourth chapter analyzes the execution relief path of the third party in the enforcement procedure under anonymous investment.In the execution procedure,the third party outside the case should make full use of the execution objection,the lawsuit of the execution objection,the third party ’s revocation of the lawsuit,the outsider ’s application for retrial,and the execution of the turnaround to protect their own rights and interests.In addition,the article further clarifies the applicable relationship between the execution relief paths under the current legal system,and the relationship between the execution relief path and the confirmed litigation.