Equity nominee holding refers to a method of equity or share disposal in which the actual investor agrees with another person to perform the rights and obligations of shareholders on behalf of the actual investor in the name of the other person.
In short, if the anonymous shareholder is not recorded in the industrial and commercial registration or shareholder register, he can only exercise the corresponding rights or assume responsibilities through the nominee shareholder, which also makes it impossible for others to know the true situation of the shareholder.
Therefore, it may lead to the legal risks of anonymous shareholders, nominee shareholders and companies.
This article will focus on the analysis of the legal risks of anonymous shareholders.
1. Brief facts of the case
In 2018, Li Si invited Zhang San to become a hidden shareholder of "Red Peach A" company, and said that if Zhang San could contribute 500,000 yuan within two months, Li Si promised to give Zhang San a fixed return of 200,000 yuan at the end of 2018 and return 600,000 yuan to Zhang San at the end of 2019.
Between April and May 2018, Zhang San transferred $100,000 each time in five installments, totaling $500,000 to B. Since the end of 2018, Zhang San has repeatedly proposed surplus dividends to the operators of "Red Hearts A", but Li Si refused on the grounds that the company has been in a state of loss. Therefore, the plaintiff Zhang San filed a lawsuit with the court, requesting that the defendant Li Si be ordered to compensate the plaintiff for the loss of interests of 500,000 yuan.
2. Case analysis
In this case, the plaintiff Zhang San argued: "Although he was not included in the company's register, he had fulfilled his obligation to make capital contributions and became a hidden shareholder of Company A; Defendant Li Si's refusal to distribute earnings is a tortious act of maliciously damaging the plaintiff's investment, and he shall be liable for compensation.
Defendant Li Si argued: "The transfers received were all used for the company's operation, and now the company has ceased operation due to losses. The court held that the plaintiff Zhang San did not provide effective evidence to prove that he was a shareholder of "Red Hearts A" Company and that the defendant Li Si was a director or senior manager of the company, and even if the plaintiff Zhang San claimed that he was a "hidden shareholder of Red Hearts A Company" according to the plaintiff Zhang San's claim, it had not been confirmed by the company, so the plaintiff Zhang San's claim against the defendant Li Si for compensation for the loss of shareholders' interests on the grounds of harming the interests of shareholders lacked evidence.
In other words, the plaintiff did not sign the equity holding agreement and did not have favorable evidence to prove the actual capital contribution, resulting in the consequence that the plaintiff could not enjoy the investment income.
3. Lawyer's interpretation
From the above case analysis, it can be seen that there are a variety of legal risks in the nominee shareholding of anonymous shareholders.
First, in the nominee shareholding model, there is a situation where the nominee shareholder refuses to deliver the proceeds to the anonymous shareholder, and there is a risk that the anonymous shareholder will not be able to obtain investment returns.
Combined with the above cases, it is a common situation in practical life that no equity holding agreement has been signed, and in the absence of a written agreement, how to prove the agreement of the two parties to hold the shares on behalf of the two parties is one of the risks faced by the actual investor.
If the agreement is reached orally, then the party asserting the rights shall form a complete chain of evidence to prove the agreement on behalf of the shareholder, including but not limited to the oral agreement to assume the rights and obligations of the shareholders and the investment risks before the establishment of the company, and the actual performance of the rights and obligations of the shareholders after the establishment of the company.
If there is no evidence to prove the above points, it may only be determined that it is private lending or unjust enrichment.
Second, anonymous shareholders also face the legal risk of having their right to know restricted.
Shareholders' right to know refers to the right of shareholders of the company to know the company's information, mainly including the operating conditions and financial status of some companies. According to the law, the anonymous shareholder has the right to consult the relevant information to understand the company's situation, that is, the anonymous shareholder has the right to know, but if the nominee shareholder does not cooperate and the company does not know, it is difficult for the anonymous shareholder to exercise its legitimate rights and interests.
Third, there is a legal risk that nominee shareholders abuse their shareholder rights and damage the rights and interests of anonymous shareholders.
According to Article 25 of the Judicial Interpretation (III) of the Company Law, "if a nominee shareholder transfers, pledges or otherwise disposes of the equity registered in his name, and the actual investor requests that the disposition of the equity is invalid on the ground that he or she has actual rights to the equity, the people's court may refer to the provisions of Article 311 of the Civil Code to handle the matter." ”Therefore, in this case, when the nominee shareholder transfers, creates a pledge or otherwise disposes of the equity without authorization, if the transferee third party obtains the transferred equity (or corresponding other rights) in accordance with the law in accordance with the principle of bona fide acquisition, the rights and interests of the anonymous shareholder will be damaged as a result.
Since the nominee shareholding is registered in the name of the prominent shareholder, if a bona fide third party has a creditor's right against the prominent shareholder, there is a risk that the equity held on behalf of the nominee will be subject to property preservation or compulsory enforcement due to the application of the bona fide third party to the people's court.
Since the nominee shareholder cannot exercise actual control over the nominee shares, if the nominee shareholder violates the agreement with the investor or evades supervision, abuses the rights of voting, dividends, priority of capital increase, distribution of residual property and other rights, it may also damage the actual interests of the nominee shareholder.
4. Lawyer's Advice
Qin Jiaze's legal team believes that there are the following ways to prevent and control the above risks.
First, the anonymous shareholder signs the equity holding agreement at the time of investment and ensures the validity of the agreement, and retains the relevant materials such as the capital contribution certificate, mainly to prove the actual capital contribution and enjoy the shareholders' rights and interests.
Second, sign an equity transfer agreement with the prominent shareholders in advance to facilitate the recovery of equity and the famous words.
Third, an equity pledge guarantee can be established to ensure that the nominee shareholder cannot transfer or create a guarantee for the equity of the actual anonymous shareholder without authorization.
The specific circumstances in actual life are different, and anonymous shareholders should understand the relevant legal knowledge in advance, make a risk avoidance plan, and ensure their legitimate rights and interests.