* * * * The following article may be helpful. Of course, you can also go to the industrial and commercial bureau for consultation.
Research on Legal Issues of Anonymous Shareholders
Considering the corporate nature of the company and protecting the interests of the company's creditors, China's laws stipulate that the names of the company's shareholders should be recorded in the company's articles of association, the register of shareholders and the industrial and commercial registration materials. However, in real life, the actual investor of the company is sometimes inconsistent with the shareholders recorded in the company's articles of association, shareholder register and industrial and commercial registration materials, which is often caused by the existence of anonymous shareholders. In this case, we call the actual investors "anonymous shareholders", while the shareholders who do not record their actual contributions in the articles of association, the register of shareholders and the industrial and commercial registration materials are called "prominent shareholders". The author thinks that "dormant shareholder" is a kind of "dormant investor", which is the title given to "dormant shareholder" relative to "dormant shareholder", that is, "dormant shareholder" is the actual investor who contributes capital to the company in the name of "dormant shareholder" and is the actual undertaker of shareholders' rights and obligations.
First, the characteristics of anonymous shareholders' capital contribution and the disputes arising therefrom
Dormant shareholders are born from dormant investments in companies and have the following characteristics:
1. Both anonymous shareholders and registered shareholders can be natural persons or legal persons;
2. There may be one or more dormant shareholders and prominent shareholders, that is, there may be multiple dormant shareholders funded by one prominent shareholder, or there may be one dormant shareholder funded by multiple prominent shareholders;
3. dormant shareholders and dormant shareholders established by dormant investment agreements;
4. dormant shareholders generally contribute in cash;
5. For disputes arising from the existence of anonymous shareholders, in general, anonymous shareholders cannot directly exercise their rights according to the anonymous investment agreement, but must confirm their shareholder qualifications in the confirmation proceedings.
Based on the above-mentioned characteristics of dormant shareholders' capital contribution, the possible disputes arising from dormant shareholders can be divided into two categories: (1) internal disputes: disputes between dormant shareholders and prominent shareholders about shareholder qualifications, including disputes over the enjoyment and commitment of company rights and obligations such as dividends, equity transfer and company operation; (2) External disputes: disputes between anonymous shareholders, prominent shareholders and third parties, including corporate creditor's rights and debts disputes and infringement disputes.
Second, the reasons for the emergence of anonymous shareholders
Anonymous shareholders invest in companies anonymously for the following reasons:
1. Evade the administrative provisions of relevant laws and regulations on investment access, investment subjects and product sales;
2. Avoid complicated registration procedures such as company establishment and change;
3. Take advantage of various preferential policies of the state, including investment and tax incentives;
4. Avoid exposing your wealth;
5. Avoiding other prohibitive or restrictive provisions of laws and regulations;
6. Avoid affecting the normal operation of the company.
Three, the current provisions of the identification of dormant shareholders
At present, Chinese mainland lacks a clear legal definition of dormant shareholders. However, in practice, the relevant laws and regulations and the guidance issued by some courts still have reference value.
(1) Company Law
In my opinion, although the Company Law has no clear provisions on dormant shareholders, it is recognized from its provisions, and the specific provisions are analyzed as follows:
(1) According to Paragraph 2 of Article 33 of the Company Law, a limited liability company shall register the names of shareholders and their capital contributions with the company registration authority; Where the registered items are changed, the registration of change shall be handled. Without registration or change of registration, it may not confront a third party.
The author thinks that for the shareholders of a limited liability company, the record of shareholders and their contributions lies not only in the register of shareholders, but also in the company documents such as the articles of association. According to this article, the register of shareholders is the basis for confirming the identity of shareholders within the company. If it is recorded in the register of shareholders without registration or change of registration, its effect is limited to not being able to confront a third party.
Because registration has the function of publicizing the third party, and the company documents recorded in the register of shareholders and the articles of association have the function of publicizing the company's insiders, the company's insiders also belong to the third party relative to the dormant shareholders and the prominent shareholders, that is, the dormant shareholders are not registered in the industrial and commercial registration authority, nor are they recorded in the register of shareholders, the articles of association and other company documents, and the effectiveness of their dormant investment agreements is only that they cannot confront the third party, which is not invalid. According to the dormant investment agreement, dormant shareholders cannot have shareholder status.
(2) According to the relevant provisions of the current Company Law on joint stock limited companies, the shares issued by joint stock limited companies can be registered or unregistered. Because of the concealment of bearer shares, there is no need for anonymous capital contribution, while registered shares (especially promoters' shares) also have the problem of anonymous shareholders because their names are recorded in company documents such as shareholders' register and articles of association. The author thinks that according to Article 93 of the Company Law, the board of directors should submit the articles of association and the minutes of the founding meeting to the company registration authority within 30 days after the founding meeting. According to Article 82 of the Company Law, the articles of association only require the name of the promoters, the number of shares subscribed, the mode and time of capital contribution, and do not require the information of other shareholders.
The author thinks that joint stock limited companies and limited liability companies also need to set up a register of shareholders. In the absence of different provisions in the law, the register of shareholders of a joint stock limited company has the same legal effect as that of a limited liability company. If it is registered with the industrial and commercial registration authority, it will also play a propaganda role. That is, unregistered persons may not confront a third party. Therefore, the dormant investment agreement between dormant shareholders and prominent shareholders of a joint stock limited company can also be introduced, and the effect limitation is only that it is not allowed to confront the third party.
(b) The practice of some courts
1. Guiding Opinions of Beijing Higher People's Court on Several Issues Concerning the Trial of Company Disputes (for Trial Implementation) (1).
Article 1 1 of the Guiding Opinions stipulates: "Shareholder qualification is the basis for investors to acquire and exercise shareholder rights and undertake shareholder obligations. According to the relevant provisions of the Company Law, the confirmation of the shareholder qualification of a limited liability company involves the actual capital contribution, the equity transfer contract, the articles of association, the register of shareholders, the capital contribution certificate, industrial and commercial registration, etc. Many factors should be considered comprehensively when confirming the qualification of shareholders. In the examination and determination of the factual evidence of specific cases, the criteria for confirming shareholders' qualifications should be selected according to the true meaning of the parties' specific implementation of civil acts. "
In my opinion, if the so-called "expression of the true meaning of civil acts should be carried out according to the specific circumstances of the parties" is involved in anonymous investment, we should still follow the expression of the true meaning of civil acts according to the specific circumstances of the parties and recognize the identity of anonymous shareholders.
2. Opinions of Shanghai Higher People's Court on Several Issues Concerning the Trial of Corporate Litigation Cases (1) and (2).
The two opinions first confirmed that the dormant investment agreement could not confront the company, and then divided the behavior of the dormant investment company into three situations, and listed the following three opinions:
(1) Acknowledge the identity of anonymous shareholders and their shares;
(2) Support the claim of dividends and other equity rights in dormant investment agreements;
(3) Support the claim.
(III) Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Company Disputes (I) (draft for comments).
Although the draft for comments has no legal effect, it can reflect the spirit of handling in practice, which is the same as the Opinions on Several Issues Concerning the Trial of Corporate Litigation Cases (I) and (II) of Shanghai Higher People's Court.
4. It is of great significance to identify the identity of anonymous shareholders.
The author believes that the existence of dormant shareholders is the requirement of business practice, and the identity of dormant shareholders must be recognized. The reason for this is the following：
1. Recording shareholders' names in the industrial and commercial registration authority, the articles of association and the register of shareholders is only a publicity procedure of shareholders' identity, and cannot replace the expression of the true intentions of the parties reflected in the anonymous investment agreement itself.
2. Shareholder qualification can be grasped from two aspects: legal basis and factual basis. The legal basis is the conditions stipulated by law for obtaining shareholder qualification; The factual basis refers to the fact that the shareholder qualification can be obtained according to law, such as subscription of shares and capital contribution. Only by recognizing the identity of anonymous shareholders can we achieve the unity of legal basis and factual basis.
3. The existence of dormant shareholders is an uncertain risk for the third party. However, if we only recognize prominent shareholders in order to eliminate this uncertainty, it is likely to make the company and the third parties outside the company fall into greater risks, because prominent shareholders are not real investors, lack investment, business vision and ability, and even lack the ability to bear economic responsibilities. For major shareholders, not only are risks and benefits asymmetric, but they may also face uncontrollable business risks (including but not limited to economic risks).
4. Only by acknowledging the identity of anonymous shareholders can we restrain their behavior and require them to fulfill their obligations and assume their responsibilities as shareholders.
5. Recognizing the identity of anonymous shareholders is conducive to maintaining the continuity and stability of business. If the identity of anonymous shareholders is denied just because the company documents and industrial and commercial registration are not recorded, anonymous shareholders are more likely to violate the anonymous investment agreement, and it is difficult to identify the nature of anonymous shareholders' behavior when they participate in the operation, which leads to the unstable operation of the company.
Five, at present, China's handling of dormant shareholders in practice.
The lag of legislation did not hinder Chinese mainland's handling of the issue of dormant shareholders. At present, there is no clear regulation, which leads to inconsistent handling in judicial practice.
At present, in judicial practice, dormant shareholders mainly appear in disputes of limited liability companies, so some people think that dormant shareholders only exist in limited liability companies. It can also be seen from the third point of this article that the Beijing Higher People's Court holds that if more than half of the other shareholders of a limited liability company know the contribution of the actual investor and the company has recognized them to exercise their shareholder rights, the people's court can only assume that the actual investor enjoys the company's equity without violating the mandatory provisions of the law.
The author holds different views on this. The author thinks that the limited company has the characteristics of human cooperation, and the existence of dormant shareholders does pose a threat to the stability of the company without the knowledge of other shareholders. The dormant shareholders are the actual investors, who not only have the desire to contribute and the willingness to fulfill their responsibilities, but also actually bear the risks of contribution, and often have strong capital to bear economic responsibilities. Denying its identity as an anonymous shareholder is not conducive to the future operation of the company and to safeguarding the interests of the company's creditors; If we admit that he is an anonymous shareholder, all other shareholders of the limited liability company need to adapt to a new face, and this person's management model and concept have long been known to them through anonymous shareholders, which has no substantial impact on the issue of human integration.
As for the joint stock limited company, as it is a joint venture company, whether the dormant shareholders are known to other shareholders should not be used as the basis for judging their identity.
To sum up, the author believes that as long as the dormant investment agreement contains the core contents listed in Article 6 of this article, the identity of dormant shareholders should be recognized, without asking whether they actually participate in the company's operation, whether other shareholders know that they are actual investors, and whether their names appear in the articles of association and internal documents of the shareholders' register.
Suggestions on solving the problem of anonymous shareholders with intransitive verbs
From the previous analysis, we can see that there are certain rules in dealing with the problem of anonymous shareholders, and judicial practice has also given conditional recognition to the identity of anonymous shareholders. The author thinks that no matter what the purpose of anonymous shareholders' investment is, in principle, their shareholder status must be recognized, but the treatment of anonymous shareholders' identity after it is disclosed should be carried out in accordance with corresponding laws and regulations. Details are as follows:
(A) the core content of the dormant investment agreement
In order to reduce the risk of anonymous investment, anonymous investment agreements are generally two-way, paid and written contracts. In the dormant investment agreement, there is mutual obligation between dormant shareholders and dormant shareholders, that is, dormant shareholders contribute capital in the name of dormant investors through certain consideration. The dormant investment agreement is concluded according to the actual needs, and the content will be different.
Based on the above-mentioned relevant laws and regulations, the author thinks that the core content of anonymous investment agreement is:
(1) dormant shareholders are actual investors and registered shareholders are nominal investors;
(2) An expression of intention to require anonymous investors to be "shareholders";
(3) Although there is no wording that anonymous investors are "shareholders", it means that investors bear investment risks, that is, it does not mean that anonymous investment agreements protect capital or avoid the inherent risks of investment.
The reason is: dormant shareholders sign dormant investment agreements with dormant shareholders, stipulating that dormant shareholders actually contribute capital and bear investment risks (if the dormant investors are agreed to be "shareholders", they can be considered to have the intention to bear investment risks), then according to the principle that risks and benefits are consistent, rights and obligations are consistent, dormant shareholders should be recognized as actual shareholders, and dormant shareholders should admit that they contribute capital on behalf of dormant shareholders.
From the above analysis, it can be seen that if the above core contents are possessed, the dormant shareholders actually bear all the risks of their capital contribution in the name of famous shareholders except that their own names are other people's names, and at the same time enjoy the rights and obligations of shareholders who contribute in the name of famous shareholders. Dormant shareholders have no shareholders' names, just shareholders.
(2) Basic rules of handling
1, general rules
The general rules for dealing with dormant shareholders are as follows:
1. The dormant investment agreement is only valid between dormant shareholders and prominent shareholders.
2. The dormant investment agreement cannot confront the company, other shareholders of the company and bona fide third parties outside the company.
This is because the existence and effectiveness of the dormant investment agreement between dormant shareholders and dormant shareholders need to be confirmed by the court or industrial and commercial registration. A bona fide third party can acquire the equity in good faith as long as it confirms the shareholders according to the company's articles of association and the records in the register of shareholders in the industrial and commercial registration materials, regardless of whether there are anonymous shareholders. This is also the need to maintain the credibility of industrial and commercial registration and transaction security.
It should be noted that the author believes that because the company is an uninformed third party relative to dormant shareholders and dormant shareholders, it does not have the obligation to recognize dormant shareholders of course. However, if the following conditions are met, the company shall recognize the identity of dormant shareholders:
1. Both the named shareholders and the dormant shareholders acknowledge the authenticity of the dormant investment agreement, and more than half of the other shareholders of the limited liability company recognize it;
2. Confirmation litigation confirms the identity of anonymous shareholders;
In my opinion, in addition to the general rules listed above, there are also special rules, that is, anonymous shareholders actually participate in the company's operation and their names or signatures appear in the documents that can reflect their status as shareholders without industrial and commercial registration, then anonymous investment agreements can be used against limited liability companies, anonymous shareholders can exercise their rights to require the company to make up the registration, and the company can also require them to undertake shareholder obligations and make up the registration accordingly. Unless there is evidence to the contrary, more than half of the other shareholders are unaware of it.
The reason is that if an anonymous shareholder actually participates in the operation of a limited liability company, and his name or signature is reflected as a shareholder and appears in the company's internal documents, it can be presumed that other shareholders know and recognize the fact that he is an anonymous shareholder.
(3) Problems that should be paid attention to when dealing with dormant shareholders.
The author thinks that no matter what consideration anonymous shareholders choose to make investment anonymously, in principle, they still need to recognize their shareholder status first, and then deal with their behavior-whether to carry out corresponding administrative treatment. , does not belong to the jurisdiction of the court and the arbitration organ. There are mainly the following situations:
1. In order to establish a limited liability company E, Party A invested in the names of Party B and Party C to establish a limited liability company with Party B and Party C as its main shareholders. Then company creditor D can claim that company E is actually a one-person limited liability company, and the judicial and arbitration organs should handle it according to the relevant laws of one-person limited liability company;
2. In order to take advantage of the tax preference, Party A contributes capital in the name of Party B. In case of dispute, the judicial and arbitration organs may confirm that Party A is an anonymous shareholder through judgment. Then the judgment can be used as the basis for its illegal use of preferential tax policies.
3. Because of its status, Party A can't be a shareholder of a certain company and contribute in the name of Party B. Because Party A is the actual investor, its contribution violates the mandatory provisions of the law and can't be remedied by changing the industrial and commercial registration, its contribution behavior is invalid, and the corresponding contribution behavior of Party B is invalid.
4. Because of its status, A can't be a shareholder of a certain company and contribute in the name of B. In case of a dispute, A should first confirm that it is an anonymous shareholder and then change its industrial and commercial registration. (a) whether the industrial and commercial change registration is actually handled after the confirmed litigation is not within the jurisdiction of the courts and arbitration institutions.
5. In order to avoid attracting attention, A has invested in the name of B, so A has taken corresponding commercial risks for its behavior, and should protect its autonomy and recognize it as an anonymous shareholder.
As can be seen from the above example, it is certainly not effective for anonymous investors to invest in the name of others. In the case of violating the mandatory provisions of the law on the restriction of shareholders' identity, and unable to remedy through measures such as changing registration, the anonymous capital contribution is invalid, and it is impossible to exercise shareholders' rights and assume shareholders' obligations through anonymous shareholders. Of course, the consequences of its invalid investment behavior may lead to a series of changes in industrial and commercial registration, so that the company can bear losses, then the company can claim damages from anonymous investors or prominent shareholders. In addition, I don't agree with the statement that a prominent shareholder can obtain shareholder status in this case, because this treatment not only gives improper benefits to prominent shareholders, but also does not help to deal with the problem of anonymous shareholders. seven
It should be noted that if an anonymous investor violates the mandatory provisions of the law on the restriction of shareholder status, resulting in invalid capital contribution, the consequence of invalid capital contribution is only to deny his anonymous shareholder status, and he can still obtain corresponding benefits according to the anonymous investment agreement.
label
The existence of dormant shareholders is the need of social and economic development and plays an important role in social and economic prosperity. In the absence of clear legal provisions, it is still necessary to find a reasonable way to seek advantages and avoid disadvantages. From the analysis of this paper, it can be concluded that it is of great practical significance and rationality to recognize the identity of anonymous shareholders, and it also restores the truth in economic exchanges. We must deal with different situations instead of denying and avoiding them blindly. Of course, to recognize the existence of dormant shareholders, we must also establish supporting measures. For example, how do anonymous shareholders and prominent shareholders identify and assume the company's debt responsibility and withdraw their capital contribution? It needs to be further clarified in legal and judicial practice.
(Source: /news 1.asp? id=949)