| In reality, many investors invest in a company the name of others due to legal reason, personal reason or other reason. This kind of investors is called “the anonymous investor”, namely the anonymous stakeholder. This kind of phenomena is proliferating year by year in the juridical practices in China, which trigger many legal disputes. However, the Corporate Law hasn't provide any clear judicial interpretation on this matter. Besides, local courts also give various guidance and advice, which leads to different verdicts on similar cases. This will impinge the fairness and just of verdicts. As a result, the supreme court launched “Regulations III on the Supreme Court's Application of the Corporate Law of the People's Republic of China” in February, 2011, since which legal interpretations on relevant issues are clearly provided.However, the Regulation hasn't offered a systematic, specific and clear interpretation on the anonymous stakeholder, but only mentions relevant issue on a few clauses. And the term “the actual investor”, instead of “the anonymous stakeholder” is mentioned in those clauses. Thus this paper discusses the identification of the anonymous stakeholder through analyzing judicial practices and current verdict rules based on the principle and theory of identifying the anonymous stakeholder. The paper is divided into three parts.The first part discusses the principle and theory of identifying the anonymous stakeholder as a foundation for the rest of the paper. The principle of identifying the anonymous stakeholder is a precondition for gradually analyzing other issues in anonymous stakeholder identification. The first principle is benefit-balanced principle. A company is an aggregation of interests. The benefit-balanced principle mentioned here is not to prevent companies from gaining benefits, but to take the interests of stakeholders into consideration, accommodating various parties and resolve conflicts from the perspective of balancing benefits. When identifying the anonymous stakeholder, we should safeguard the interest of companies as well as ensuring transaction safety and making full use of the benefit-balanced principle. The second principle is ensuring the stability of a company. The stability of a company is the prerequisite for the existence of the company. The base for identifying the anonymous stakeholder is the subsistence of the company. So this principle is the prerequisite for anonymous stakeholder identification. The third principle is the autonomy principle. A company is in the scope of private law. If a company is not violating laws or compulsory regulations, public rights authorities should not interfere its management or decision-making. The fourth principle is the principle of protecting the bona fides third party. In anonymous stakeholder identification, there is always a bona fides third party. It is necessary to protect the bona fides third party. The fifth is representation principle. One of the most important principles in China's hcommercial activities is efficiency and convenience, which results in the representation principle, such as registration of hcommercial activities. The sixth is ban evasion of law. There are many laws concerning restriction of investment. Anonymous stakeholder is one of them. So it is a must to ban evasion of law.There are disputes among theorists on the issue of anonymous stakeholder identification. There are three mainstream theories: essentialism, formalism and eclecticism. The criteria for essentialism is whether the anonymous stakeholder makes contribution of capital. If it does, it can be identified as an anonymous stakeholder. Formalism is the opposite of essentialism. It only focuses on the formality of anonymous stakeholder identification, which includes business registration and register of shareholders. Eclecticism includes the merits of essentialism and formalism, but it has no originality of its own. Eclecticism is that one should separate inner company condition from outer company condition before identifying an anonymous stakeholder with essentialism and formalism.The second part analyzes the status quo and flaws of identifying the anonymous stakeholder practices in China, and deeply discusses relevant issues through analyzing cases according to the Corporate Law, judicial interpretations, guidance and advice from local courts, relevant cases types, so as to come up with the flaws in the law. There are few legal base about anonymous stakeholder identification in the Company Law and its judicial interpretation. There are only superficial explanation on the identification. So there is much room for improvement. This paper lists three dispute types, namely disputes between anonymous stakeholder and named stakeholder, between anonymous stakeholder and company, and between anonymous stakeholder and the bona fides third party, and explains each dispute type with cases. In the second part, the author also discusses problems in anonymous stakeholder identification. The first is a lack of legal bases. In China, the laws about anonymous stakeholder identification came into being in recent years, which is a relatively late start. The second is a restriction on the acquisition of anonymous stakeholder identify. The acquisition of anonymous stakeholder identify belongs to the scope of autonomous activity. But the anonymous stakeholder identification should gain the approval of the court, which leads to the intervention of judicial organizations. The third is the inaccuracy of relevant terms, which will expand judge's discretion. The fourth is that the pattern for delegating anonymous stakeholder identification is so simple that many people consider it as an act of agency. But after analyzing, the author finds some disadvantages in this pattern. Last, in practices, difficulties emerge due to disorderly conduct in company establishment and court's ambivalent attitudes in relevant trials.The last part gives some suggestion on identifying the anonymous stakeholder and discusses how to make improvement. Suggestions is made according to the previous studies from the view of improving criteria. First, provisions of law on anonymous stakeholder identification should be improved. In China, the law in this respect is far from perfect. It is hard to make judgment in judicial adjudication. As a result, we should further improve legal systems, laws and regulations. Besides, substantial requirements of anonymous stakeholder identification should be improved. anonymous stakeholder identity will not be acquired until five conditions are meet: real intentions, actual investment behavior, valid shareholder agreement, agreement from more than half of the stakeholders and non-violation of obligatory provisions of laws. Besides substantial elements, procedural requirements should also be met. A company should have strict regulations on inner company identification. Anonymous stakeholder identification might involve external parties, such as the bona fides third party, so procedures to file a lawsuit should also be clearly identified.In conclusion, as China's economy develops rapidly, more legal disputes anonymous stakeholder identification will arise in actual situation. So it is necessary to study and help improve anonymous stakeholder identification system, in the hope of advancing our economic development and safeguarding economic order. |
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