隱名出資的類型重釋與規範構造──基于對契約法思維的反思

Reinterpretation of the Types of Anonymous Investment and the Reform of Company Law: Based on the Reflections from Rules of Contract Mentality

隱名出資的股權狀態，不同于“出資人──股權──公司”的傳統認定結構，涉及對內對外多重法律關係。現有相關規定深受契約法思維定式的影響，忽視了公司的程式地位，不僅使得股東認定標準在司法實踐中存在搖擺，而且嚴重困擾隱名出資的制度定型。從組織法視域出發，隱名出資可分為“借名取利型”和“借名經營型”兩種類型，基于此，能夠在公司程式運行、股權爭議狀態、善意取得等環節合理劃定各主體間的關係，完成隱名出資的完整應用。此二元類型的劃分以“行權”作為核心要素，從公司關係角度分析“名實分離”的兩個主體與公司之間的關係，通過重點識別實際出資人在組織法中的規範位置，實現對隱名出資的理論解讀。

Anonymous investment, as a kind of equity state of “separation of the nominal and real”, is different from the traditional identification structure of “investor - stock - company”, which involves multiple internal and external legal relations. Both the Judicial Interpretation of the Company Law (Third) and the Minutes of the Ninth National Court of Civil and Commercial Trial Work Conference are deeply influenced by the mentality of the rules of contract, which ignores the procedural status of the company. It not only makes the standard of shareholder identification uncertain in judicial practice, but also seriously puzzles the finalization of the system of anonymous investment. From the perspective of the rules of organization, combined with relevant empirical research, anonymous investment can be divided into two types,namely, “profiting” and “management” . The typological construction of anonymous investment can reasonably define the relationship and influence of various subjects in the procedural operation of the company, the state of equity dispute, bona fide acquisition, and other equity operation links, and finally complete the application of anonymous investment. The division of this dual type is to take “exercise” as the core element of the qualification of anonymous shareholders, determine the relevant legal relation structure in the “company relation”, and specifically analyze the relation between the two subjects of “separation of name and reality” and the company, to identify the normative position of the actual investors in the rules of organization and complete the theoretical interpretation of the anonymous investment type.