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很多台商在祖国大陆投资时为了规避大陆法律对股东人数、股东资格的种种限制,或者是因为不愿公开自身的经济状况,而采取借名入股的方式设立公司。这种行为形式上看符合《公司法》以及三资企业法的规定,但实质上是规避法律的违法行为。由于大陆现行法律未对借名入股的行为进行规范,因此一些台商就冒险借用甚至冒用他人的名义进行投资。而当纠纷产生时,台商们由于对大陆法律认识模糊,对借名入股的法律后果无法清晰预见,实践中,台商们因此而遭受的损失是惨重的,教训也是惨痛的。可是,在目前的台商投资企业中,这种现象仍屡见不鲜。本文试图借助真实的案例,对借名入股的法律后果进行剖析,希望能对台商投资大陆有所帮助。
In order to evade restrictions imposed by mainland law on the number of shareholders and shareholders’ qualifications of mainland law, many Taiwanese businessmen set up companies by way of name-shareholding because of their unwillingness to disclose their own economic conditions. This form of behavior in line with the “Company Law” and the provisions of the three-funded enterprise law, but in essence is to avoid legal violations. Since the existing laws in mainland China do not regulate the behavior of borrowing shares, some Taiwanese businessmen have risked to borrow or even invest in the name of others. When disputes arose, Taiwanese businesspeople were unable to clearly predict the legal consequences of borrowing and joining shares because of their vague understanding of mainland laws. In practice, the losses suffered by Taiwanese businessmen were heavy and the lesson was painful. However, in the current Taiwanese investment enterprises, this phenomenon is still not uncommon. This article attempts to use the real case to analyze the legal consequences of borrowing shares, hoping to help Taiwanese businessmen to invest in the Mainland.