Research On The Supplementary Liability Of The Anonymous Investors To The Company’s Creditors

In 2019,the Supreme People’s Court issued the Minutes of the National Courts on Civil and Commercial Trials(Draft for Comments)(hereinafter referred to as the Jiumin Summary(Draft for Comments))to solve the difficult legal problems existing in civil and commercial trials.Article 26 stipulates that under the case of anonymous capital contribution,the anonymous investors shall assume supplementary liability for the company’s creditors,that is,the actual investors shall be requested to bear responsibility for the part of the company’s debts that cannot be liquidated within the scope of non-capital contribution on the grounds that the nominal shareholders have not performed or fully performed their capital contribution obligations.If the evidence provided is sufficient to prove that the nominal shareholders only hold shares on behalf of the actual investors,the people’s court shall support it in accordance with the principle of consistency of rights and obligations.This provision is a response to the current judicial practice on the assumption of supplementary liability of the company’s creditors by anonymous investors,that is,whether the company’s creditors can directly require the anonymous investors to assume supplementary liability for compensation in order to realize the company’s inability to pay off part of the creditor’s rights and interests when the anonymous investors violate the agreement on the actual capital contribution of the anonymous capital contribution contract,and the nominal shareholders do not have the ability to contribute capital.Unfortunately,the official Jiumin Summary deleted this article and replaced it with the obvious conditions for the actual funder stipulated in Article 28.Therefore,under the current law,only under the provisions of Article 27 of the Provisions of the Supreme People’s Court on the Application of the Company Law of the People’s Republic of China(III)(hereinafter referred to as Interpretation of the Company Law(3)),the nominal shareholders shall bear the supplementary liability of compensation to the company’s creditors,and then the contract of anonymously contributed capital.It is agreed that the anonymous investors shall be the ultimate bearer of the liability.However,this solution is premised on the ability of nominal shareholders to compensate,but in practice,most nominal shareholders are unable to assume supplementary liability for compensation to the company’s creditors because they do not have the ability to compensate.The nominal shareholders who have not yet compensated lack the factual and legal basis to exercise their right of recourse,and the company creditors cannot pursue anonymous capital contributions.As a result,it is difficult to hold the ultimate responsibility of anonymous investors accountable,and it is also difficult to achieve supplementary compensation for corporate creditors.Therefore,based on current judicial practice,this paper aims to clarify the subject status of anonymous investors’ supplementary liability,with a view to using civil and commercial jurisprudence theory to build applicable rules for anonymous investors to assume supplementary liability within the framework of the current law.This article consists of two parts: introduction and body.The body consists of three chapters,as follows:The first chapter points out and analyzes the three different judicial decisions on the current anonymous investor’s assumption of supplementary liability.Through the introduction of different cases,three different judgment opinions are introduced,that is,judgement opinions with the principle of commercial appearance as the core,the principle of substance over form as the core,and the principle of double standards and internal and external differences as the core.Different adjudication opinions are different choices for legal benefit protection,reflecting the lack of unified cognitive and adjudication standards for the supplementary liability of anonymous investors in the current practice,leading to conflicts of different judgments in the same case.At the same time,there are shortcomings in the application of each of these three opinions themselves,and it is difficult to provide comprehensive theoretical support for anonymous investors to assume supplementary liability.Therefore,according to a large number of judicial cases,this chapter points out the problems existing in judicial practice that anonymous investors escape undertaking supplementary liability.The second chapter demonstrates the relevant rules and theoretical analysis of the assumption of supplementary liability by anonymous investors under the current law.Combining the above judicial opinions,this chapter sorts out the relevant rules for anonymous investors to bear supplementary liability under the current law,and summarizes two different rules on the assumption.The first rule is that the anonymous funders are not liable for supplementary liability,and the specific content is in the current Company Law and the legal framework of its judicial interpretation.It is stipulated that the nominal shareholders shall bear the supplementary liability for compensation,and then recover from the anonymous investors based on the agreement of the anonymous capital contribution contract.However,due to the complexity of supplementary liability under the case of anonymous capital contribution,and the difficult problem of Supplementary liability cannot be investigated due to the inability of nominal shareholders to compensate.Therefore,some courts,on the basis of summarizing judicial decisions and combining with actual situations,issue opinions on the handling of relevant civil and commercial trials,and begin to explore the assumption of supplementary liability by anonymous investors.That is,under certain preconditions,the anonymous investors bear supplementary liability for the company’s creditors and this is the second rule.The same point of the above two rules is to take the shareholder qualification under the case of anonymous capital contribution as the basis for assuming supplementary liability for compensation.The difference is different to define the ownership of shareholders’ qualifications under the case of anonymous capital contribution.So in order to further study the issue of shareholder qualification attribution under the case of anonymous capital contribution,this paper introduces three views held by the current theoretical community on this.Among them,the formal element states that the appearance form of registration publicity should be used as the criterion for defining shareholders’ qualifications,and it is believed that shareholders’ qualifications should belong to nominal shareholders.The substantive element argues that the actual capital contribution is the criterion for defining the qualification of shareholders,and believes that the shareholder qualification should belong to the anonymous investors.It is argued that different criteria should be used to define shareholders’ qualifications to distinguish the internal relationship and external relations of anonymous capital contribution.For substantive elements as the criteria for defining shareholders’ qualifications,shareholders’ qualifications should belong to anonymous investors.For formal elements as the criteria for defining shareholders’ qualifications,shareholders’ qualifications should belong to nominal shareholders.Through the theoretical analysis and inspection of the above views,coupled with the consideration of judicial practice,this paper believes that the shareholder qualification should be attributed to the nominal shareholders as the criterion for defining shareholder qualification.The third chapter demonstrates the theoretical basis of anonymous investors to assume supplementary liability.First of all,define the legal relationship of anonymous capital contribution.Referring to the treatment opinions issued by local high-level courtyards to define the legal relationship of anonymous capital contribution,point out the difference between its legal relationship and loan,and define the constituent elements of the legal relationship of anonymous capital contribution.Then,introduce the entrustment agency theory of the legal relationship of anonymous capital contribution held by the theoretical community,and carry out scientific analysis and inspection of it.Finally,through three levels,the legal relationship between anonymous capital trust and agency is logically proved.First,the breakthrough of the principal-agent theory of the applicable obstacle is to solve the problem of the application obstacle proposed by the theoretical and practical circles.Second,the connection between the agency theory and application,that is,solving the problem of how to realize the connection between the Company Law and the Civil Code contract.Third,the agreement between principal-agent theory and anonymous financing is to solve the problem of matching the legal relationship between principal-agent theory and anonymous financing.Through the above three levels,we demonstrate the theoretical basis of the application of principal-agent theory to the legal relationship of anonymous capital contribution.The fourth chapter is to construct the applicable rules for the dormant investor to assume the supplementary compensation liability for the company’s creditors.First of all,the naming rules of the dormant investor shall be applied.That is,the "Company Law Interpretation(3)" Article 24 Paragraph 3 and the "Nine People’s Minutes" Article 28 of the name of the unnamed investor rules are applied to transfer the shares under the name of the nominal shareholder to the unnamed shareholder Under the investor’s name,the silent investor shall have the qualifications of the company’s shareholder.According to Article 18 of the "Interpretation of the Company Law(3)",the creditor of the company may claim that the hidden investor and the nominal shareholder shall bear joint and several supplementary compensation liabilities.Secondly,the application of entrusted-agent rules divides the anonymous investors into fully anonymous investors and incomplete anonymous investors.Fully anonymous investors refer to the application of the theory of incognito agency.The shareholders of the trustee can disclose to the company.Because the principal is completely anonymous,the company cannot pay the capital contribution to the company.The company can choose the completely anonymous investor or the name Shareholders bear the actual contribution of capital.After the company chooses a fully anonymous contributor to assume the actual contribution,the fully anonymous contributor shall be liable for supplementary compensation to the company’s creditors.Incomplete anonymous investors refer to the provisions of Article 925 of the Civil Code.Since other shareholders of the company are aware of the facts of anonymous capital contributions,the agreement of the nominal shareholders to subscribe and contribute capital to the company directly binds the company and the anonymous investors For the same reason,the incomplete anonymous investor shall bear supplementary compensation liabilities to the company’s creditors.