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 Wysłany: Czw 11:56, 14 Kwi 2011 Temat postu: Discussion _922 dormant shareholders |
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Discussion implicit shareholders
Discussion implicit shareholders
For a long time, China's economic life, there is the phenomenon of anonymous shareholders. Hidden shareholders in recent years due to frequent disputes, but the law has not yet provided its specifications. Around the court in appropriate cases to seek the relevant legal provisions are often the basis for the trial, such as the lending relationship, agency relationship, fiduciary relationship, trust relationship, leading to trial standards all over the big gap between the rights of interested parties confirmed in righteousness there is a big difference. Implicit in the current shareholders on the absence of legal provisions, relevant questions need to be resolved, only the legislative and economic situation in our country, first of all its basic analysis.
First, the basic characteristics of dormant shareholders
Implicit in China's legislation has yet to make clear that shareholders. China has been scholars, practitioners who were shareholders of the implicit, defining the concept; But how dormant shareholders by title, or the use of the concept of anonymous investors, has not yet reached consensus. By examining the substance of the point of view, mostly limited to the company on behalf of investors in the investment process and the actual study the relationship between the investor, the concept of dormant shareholders, the real, but there are differences of legal status. There are more representative of the following:
1, the company's dormant investment refers to the party (undisclosed investors) actually subscribed capital, but the company's Articles of Association, registered shareholders, or other business investors who have recorded material for others (significant name investors) of legal phenomena . [1]
2, the dormant shareholders, is based on written or oral agreement signed on behalf of those who held shares. [2]
3, hidden shareholder means that although the actual contribution to subscribe for shares, but in the Articles of Association, shareholders and business registration are recorded as other investors. Hidden shareholders mainly to evade the law type. [3]
4, the investors in order to circumvent the law or for other reasons, to borrow the name of another company or the name of others set up investment, commonly referred to as implicit shareholders. Contrast material should be recorded in the industrial and commercial registration was revealed to shareholders on the shareholders. [4]
5, hidden shareholder means shareholders in the form of features not available on the company's actual investment, but the actual enjoyment of the rights of shareholders and investors. [5]
The concept from different angles defines the dormant shareholders, despite the existence of some statements incomplete or inaccurate, as the first 5 statements that the dormant shareholders have full shareholder rights is the subject, but do not have the required Act in the form of elements, so that with our existing laws on dormant shareholders entitled to shareholder rights are not clearly contradict the current situation, and contrary to the mandatory features of the existing company law. By the author of the above point of view to shareholders outlining the dormant dormant shareholders summarized some of the basic features:
1, the dormant shareholders generated by the legal acts. Implicit generation of shareholders is significant hidden shareholder shareholders in compliance with existing laws under the premise that the true intention of both sides have, to circumvent the law does not contain the name of others borrowed capital case. Such as the implicit use of the state shareholder does not include investment and operation of preferential policies for laid-off workers, agreed with the company on behalf of laid-off workers who financed.
2, hidden by shareholders and investors was undisclosed contractual relationship between celebrities arising. This includes two meanings, one dormant shareholders is the essence of the issue involved a contract, the second is implicit shareholders for the immediate parties involved were shareholders and undisclosed shareholders.
(1) significant shareholder, is in the process of dormant investment company, the shareholders agreed to anonymous contribution to the cause of their own party on behalf of business. The significant shareholders of the eligibility requirements, to comply with China's relevant laws and provisions on corporate investors. If a government employee, Macao and Taiwan as the main investment restrictions. Trial cases from the existing point of view, significant shareholders may be natural, but also for the company; can be as separate individuals, but also for multiple independent natural persons.
(2) dormant shareholders are shareholders in the implicit contract, and significant shareholders, the true funders. Statistics from the existing cases are not seen too many hidden limitations eligible shareholders, the shareholders may be natural dormant, it could be a company, can be a businessman, or non-businessmen.
Implicit contract shareholders investors only by anonymous and were composed of both celebrities. But a hidden shareholder investment contract, one party or both may be several others. Shown with a hidden celebrity as one of the co-operation with a significant name to enter into investment contracts with a dormant shareholders; [①] or more were common name business is a party with a dormant investment shareholders who have entered into an implicit contract.
3, the implicit contract for shareholders Bilateral Contract, compensation contracts. Negative contribution obligation dormant shareholders, which was negative shareholder interests of business and distribution obligations, mutual obligation, and each other on price, no party can obtain free from the interests of other parties, it is dormant for the bilateral contract Shareholders contract, paid contract.
4, the implicit promise into a contract for the shareholders and not to contract-type contract. Implicit contract by shareholders of both parties, meaning that the same set up, not to anonymous shareholders elements for the establishment of the actual investment, actual investment dormant shareholders compared to the actual performance of the contract, so the promise into the contract. Hidden shareholders of the contract, the existing law does not explicitly established in a particular form, so as not to type contract.
5, the implicit subject of the main shareholder capital as money, without taking the registration forms for the elements of the physical transfer of property, rights, technology. The contribution of the existing Company Law encompasses the subject of money, goods, industrial property rights, non-patented technology, land use rights. Also provided in kind, industrial property, patented technology or land use shall apply for the Right to the transfer of property rights procedures. The anonymous shareholder capital implicit aims not to expose the true identity of the capital under the premise of profit-making activities. If the dormant shareholders to land use rights or real estate investment, according to the current Company Law, the actual transfer of funding to apply for registration of property rights for the element, this will undoubtedly expose the identity of anonymous investors. Or were dormant investors and real property transfer contract signed before Masters, or technology transfer contract, then the capital, this situation caused the transfer of property rights, leading to actual persons and property investors the same operations in the future will inevitably lead to even more complex disputes.
Second, the dormant shareholders compared with the related concepts
Hidden shareholders as a special form of shareholders, different from ordinary shareholders, false shareholders, shareholders of dry, empty shareholders, but they are also similarities, easy to cause confusion, therefore, it is necessary that they be discrimination.
(A) dormant dormant shareholders and ordinary shareholders have the general characteristics of the shareholders and ordinary shareholders compared to the difference between the two is mainly reflected in: 1, common shareholders are the property investment company founded by all; hidden shareholder capital contribution, property transferred to the obvious first name, shareholders, and then to reveal the name of investment company shareholders; 2, ordinary shareholders can all land use right and other real estate investment, while the dormant shareholders can only transfer of property rights without the formal requirements for registration as investment property ; 3 to ordinary shareholders for the company the articles of association records and business registration materials, and dormant shareholders recorded in the file is not only with the obvious documented in the contract signed Gudong; 4, according to its common shareholders have rights and obligations determine the relative shares, dormant rights and obligations of shareholders were shareholders imposed in conformity with the agreement, but also by the ordinary shareholders, restrictions, rights and obligations of its shareholders in a relatively uncertain state.
(B) of the dormant shareholders with false false shareholders including shareholders not exist under the name of the person and theft of investment and registered in the name of the real investment and registered two cases. [6] dormant shareholders with false Gudong Although his name is not funded, but there are significant differences between the two: 1, hidden shareholder capital is its capacity for civil conduct independent shareholders of the civil subject revealed the true meaning of that The false contribution was false as false the investor is a person or legal fiction to avoid the subject, or the unauthorized use of the name of persons; 2, hidden shareholder rights and obligations of shareholders are not completely determine the state, according to the situation in the company or with business in manifest to determine the shareholders agreement, the shareholders are false There is simply no such natural or legal persons subject to equity holders can not constitute a valid,[link widoczny dla zalogowanych], false shareholders, as the implementation of the false acts of subjects of law, in fact, the exercise of the rights of shareholders; 3, hidden shareholder basis and revealed shareholders arising from the contract, false shareholders are formed to circumvent the law.
(C) of the dormant shareholders shares space with the space shareholders, is the share option but despite payment options should be financed is not paid Shique shareholders, also known as the flaws of capital to shareholders of this [7] . its implicit distinction between shareholders mainly due to: 1, actual performance of the dormant shareholders contribution obligations because of the contribution obligation dormant shareholders the actual, full implementation of the supervision of the shareholders by the manifest. Hidden shareholder capital is not in place will directly lead to articles of incorporation, business registration materials to shareholders recorded in the manifest responsibility, under the supervision of significant shareholders, hidden shareholder actual contribution is often difficult to avoid the obligations of the contract illegal and undisclosed funding situation excluded. The space is not in accordance with the statutory shareholders or agreed to pay the corresponding capital in place; 2, dormant shareholders are entitled to the rights of shareholders in uncertainty, while empty shareholders actually enjoy their corresponding equity contribution; 3, dormant shareholders in certain circumstances can be shown, and empty shareholders generally will not perform because of funding delays and the loss of shareholder qualification course, but the air is likely to shareholders as capital reaches a certain period of delay in performance have been removed according to the law, loss of shareholder qualification. Although the Act has not been established norms of the air removal system for shareholders, but also not established limit air shareholders equity measures. Shareholders in accordance with the general principles of space, as long as the company did not remove him from the air shareholders still should be considered legal shareholders, and in principle, entitled to share space under the equity shares, equity shares of the corresponding air discharge legal obligations. However, the relevant provisions already in foreign countries such as Germany, (D) and dry dormant shareholders shareholders shareholders dry means a gift by the other shareholders or the company's shareholder qualification options for people. The difference is mainly reflected in: 1, dormant shareholders to bear the actual contribution obligation under the contract, and by the obvious oversight of shareholders, and shareholders tend to dry without incurring any obligation to the actual contribution, often based on skills and the other shareholders or favor of the company, making the other shareholders or the company is willing to share their contribution or gift to him; 2, hidden shareholder in the company articles of association, investment certificates, business registration material not recorded, and dry stock shareholders are recorded in the articles of association, business on the registration materials; 3, dormant shareholders are shareholders in accordance with the contract with the manifest generation is often the result of dry and shareholders equity stake in the donor gift agreement arising; 4, in dealing with significant hidden shareholder's shareholders First of all disputes should be respected and significant hidden shareholder investment contract between shareholders, shareholders in cases of disputes arising dry should respect and recognize the holders of shares of the shareholders eligible to dry, as far as possible while maintaining dry stock option grants when agreement.
Third, the shareholders of the legislation on dormant
(A) lack of existing legal provisions of the dormant shareholders
From the perspective of the existing law there is no clear provisions of the dormant shareholders requirement. Company law makes provision for ordinary shareholders, clearly the rights and obligations of ordinary shareholders.
(B) the Supreme People's Court Although the Company Law, the shareholders shall be recorded in the name or title of the Articles of Association, shareholders, business registration materials to meet the characteristics of the company group method. But in real life, only to provide funds, material objects, agreed to participate in distribution of profits, but not involved in the company operation and management of the dormant shareholders abound. To deal with disputes arising therefore, the provisions of its pre-Supreme Court. Supreme People's Court in December 2003 announced regulations. However, we can not by Article 19, Article 20 establishes the presumption that the draft system of anonymous shareholders. From article 19, paragraph 1, provisions that, in a limited liability company, although the actual name of the investor on the investment between investors, business and related rights and obligations of the agreement, but the performance of the process, the actual enjoyment of equity investors to undertake relevant obligations, and to know more than half of other shareholders. Recognized in equity in the People's Court of Appeal may determine the actual enjoyment of equity investors, but does not preclude the court denied the actual investor has equity. Paragraph 2 follows the idea of the true meaning of the eligibility of shareholders to resolve the problem, and paragraph 3 of the said doctrine is followed. Idea is for the true meaning of the Civil Code and other legislative concept of personal law, and that doctrine is and Commercial Law and other organizations consistent with the concept of enacting the law. Law is a typical group method, group method should give priority to the general rule that the said doctrine. The funding agreement between the parties bound by the agreement only affected parties, the shareholders in relation to the establishment of qualified companies, the third multi-stakeholder groups such as law on the legal relationship. Therefore, the contribution agreement between the parties based on the true meaning of ideas can be processed, the resulting liability shall be handled by civil law; and the establishment of the shareholders eligible to sit for the use of scales defined doctrine, giving shareholders, the company registration materials has priority over the behavior of publicity forces the inner meaning of both parties said. [8] first two sentences of Article 20 Table reflect the relationship between the civil law meaning of Marxist priority, and with the true meaning of civil legal relations, the principle of combining Marxism, but the third sentence of the provision are blurring between commercial and civil co-existence between cases, the principles should be followed. While draft article 19, section 20 requires us to dig out the legislative system of dormant shareholders a little attitude, and we can not confirm that the two established a system of anonymous shareholders.
Fourth, the shareholders on whether to establish the System of dormant
On whether the legal system established in the dormant shareholders, with the number of cases in recent years, growing gradually rise to concern in legal circles.
To the view that the provisions in the legislation of the contents of anonymous shareholders, but shareholders do not have the name hidden, implicit from the above description on the concept of shareholders is evident. In fact reason is dormant shareholders than the shareholders, but shareholders and was dormant between shareholders. This paper argues that, if not a name used specifically to denote implicit investment in the company of such shareholder's particular form of technology will increase in the legislative difficulties. Implicit shareholders to its title, only to bring convenient and practical to avoid the trouble to find another his name, but also other systems to avoid the situation of confusion anonymous contribution, such as the dormant partnership (though not of the same current the establishment of dormant partnership system).
Another view is that China is in the old system during the transition period, the legal system is not perfect, makes it difficult to operate this way dormant shareholders to exercise effective oversight and management. Moreover, it may lead to some units and individuals (national civil servants) to secretly hidden way shareholders investment and control management, abuse of power, gain power and money the double reward, which contribute to corruption and malpractice. First, we established the system is dormant shareholders arising due to the needs of the times, the reality of economic life in such a situation occurs frequently, if he did not be special laws for its regulation, blindly with similar requirements will inevitably cause by flooding to circumvent the law in this case, distorted economic development right direction. Second, we established the system of implicit shareholder acts as legitimate in itself, to avoid dormant investment company law is illegal, not the content hidden shareholder system, as well as civil law, administrative law and other relevant laws of the exclusion.
Implicit in our shareholders is necessary to establish the system, first, judicial practice in real life and the needs of shareholders in the form implicit in our economic life have been frequent, the Supreme Court referred to the previous text of the requirements is evident. It is precisely because there is no clear legislation, the objective and need to adjust the law, so only with the relevant provisions, judicial interpretation to cover. There has been an objective need for the legal regulation of social relations, legislation should not shy away, but should be clear in time, be necessary to regulate, guide and regulate. Second, the investment will help improve people's enthusiasm, to a greater extent absorb idle funds for the production; relief fund managers on the pressure of demand and promote economic development; while the rule of law consistent with the principle of freedom of contract.
Shareholders on the implicit contract, the rights of shareholders hidden meaning, whether implicit shareholder revealed its rules, hidden shareholder and other shareholders, the relationship between the company and creditors are more specific issues that require further study.
Notes:
[①] employee stock ownership in the process of restructuring state-owned enterprises that may occur related to the case of Daqing Intermediate People's Court [link widoczny dla zalogowanych] 2003-5-22
[②] Article 19, paragraph 1: investors and others have agreed to name the other investors, and the agreement shall not be against the company, but more than half of limited liability companies and other shareholders who knows the actual capital investment, and the company has recognized its exercise their rights as a shareholder, without violating the mandatory provisions of law the circumstances, the people's court may determine that the actual enjoyment of the rights of the company investors. Paragraph 2: party funding, the name of the other shareholders to participate in the company, the two sides agreed contributors are shareholders or investors bear the investment risk, the actual name of the investor advocate investors dividends and other shares transferred property interests, without violation of the law mandatory under the circumstances, the people's court should be supported. Paragraph 3: one contribution, the name of the other shareholders to participate in the company, the two sides have not agreed contributors are shareholders or investors bear the investment risk, and investors failed to participate as shareholders or company management to the company on behalf of shareholders had the right idea , only to shareholders on behalf of investors who have claims to participate in the company; its prosecution of claims or have an equity interest of shareholders, the people's court shall not support.
[③] Article 20: Shareholders have invested because of lack of capital flight and other acts of corporate bonds on behalf of investors who claim to its liability, the people's court should be supported. Creditors of the company on behalf of investors to take responsibility, you can recover the actual investor suffers losses. Creditors of the company to investors and the actual name of the investor as a co-defendant, the people's court should be permitted.
References
[1] Zhang Bin. Dormant investment company in the legal practice of [OL]. [link widoczny dla zalogowanych] 2004-9-23
[2] Yu political level. Shareholders eligible for legal recognition [OL]. [link widoczny dla zalogowanych]
[3] Liu Min. Shareholders of the three qualification questions [OL]. [link widoczny dla zalogowanych]
[4] Wang Chengyong Chen Guangxiu. Eligibility dormant shareholders of the Problems of [J]. The law applicable, 2004 (7) :62-63
[5] Li Houlong Lei Xinyong. Limited Liability Company qualified [OL]. [link widoczny dla zalogowanych]
[6] the people of Jiangsu Province Higher People's Court of the Second Chamber. Limited Liability Company on the qualifications [A]. Jiangda Xing. Company Law Reports Volume 1 [C]. Beijing: CITIC Publishing House, 2002.P368
[7] Yu political level. Shareholders eligible for legal recognition [OL]. [link widoczny dla zalogowanych]
[8] Jiang Taixing. Expand Company Law and evaluation [M]. Beijing: Law Press, 2001: P461-473
Zhao Bing
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