| Nominee shareholding has a broad and narrow sense.The former refers to the situation that,due to various reasons,the shareholders registered in the shareholders’ register or the registration authority are separated from the actual investors or the beneficiaries of the equity interests;the latter refers to an arrangement whereby both parties agree in a nominee shareholding agreement that the actual investors make capital contribution while the nominal shareholders register or the registration authority of the target company.Objection to enforcement by a party not involved in the case may occur under the two circumstances,and the resolution of the issue will involve disputes over appearance of right,ownership of equity interests and other issues.The legal relationship of nominee shareholding in a narrow sense is more complicated and typical.Therefore,the following analysis will be conducted based on the claim of actual investors regarding objection to enforcement against a party not involved in the case.As to whether the actual investors can exclude the objection of nominal shareholder creditors,one of the key points of dispute in judicial practice and theory circles is whether the theory of appearance of right liability can be applied in this Case,that is,whether a nominal shareholder creditor can claim that the shareholder registration constitutes appearance of right,so that it shall be protected for it to rely on such appearance in good faith.One of the key arguments that the actual investors may exclude the enforcement by nominal shareholders is that the theory of appearance of right liability only applies to transaction field,not to enforcement,so the interest of the actual investors shall be protected.However,such arguments do not address whether the shareholder registration constitutes appearance of right;those who believe that the actual investors may not exclude the enforcement by nominal shareholders should distinguish between internal and external relations.In external relations,firstly,it is affirmed that the shareholder registration may constitute appearance of right,secondly,according to the literal meaning of Article 32(3)of the Company Law(Article 27(2)of the Company Law(Draft Amendment),the same below),the theory of appearance of right liability may also apply in non-transaction field,so the reliance interest of nominal shareholder creditors shall be protected.However,the author believes that there is no room for the theory of appearance of right liability to be applied in this Case at all,and the debate between the two parties ignores three key premise issues.First,the theory of appearance of right liability requires that appearance of right must be credible,that is,appearance of right and the real status of right must have a high degree of consistency or probability,so that the party relying on appearance of right can judge that the appearance of right commends the "real status of right" according to social habits and transaction experience.However,under the current law,there are often discrepancies between the shareholder registration and the real status of equity interests,so the shareholder registration cannot constitute appearance of right at all.Second,the theory of appearance of right liability requires that the third party shall perform legal acts by relying on appearance of right in good faith.However,in judicial practice,the nominal shareholder creditor does not establish a legal relationship of credit and debt with the nominal shareholder for its reliance on the equities,so the nominal shareholder creditor does not need to protect its reliance interests;third,in judicial practice,the courts often take Paragraph3,Article 32 of the Company Law as the legal basis for the theory of appearance of right liability;however,from the perspective of the overall purpose of company registration,the "third party" in the rule that "no third party may be confronted without registration" only refers to the third party who conducts transactions with the company,and does not include the nominal shareholder creditor.Whether the actual investor can exclude the enforcement by nominal shareholder creditor on the equity interests held by the nominal shareholder creditor.In judicial practice,some courts hold that the nominee equity interests belong to the actual investor,while others hold that the nominee equity interests belong to the nominal shareholder from the perspective of public announcement.Correspondingly to practice,in theory,some scholars insist on the substantive standard and hold that the equity interests are obtained by the actual investor,while others hold that the equity interests are obtained by the nominal shareholder from the perspective of formal standard.This article holds that,because the nominee equity interests all occur in the situations of equity transfer,capital increase and company incorporation,and these three situations have the nature of legal acts,the ownership of the nominee equity interests should be observed from the perspective of legal acts and judged by the principle of manifest principle and the mode of equity change.The mode of equity change is a theoretical debate between intentionalism and formalism.The intentionalism mode is not only in line with the relevant provisions on equity change in the current law,but also more in line with the legal nature of equity interests in external relations.The register of shareholders is an important document for the transferee to confront the company;if equity transfer is to be effective against a third party,the current register of shareholders system must be reformed.In this way,the equity interests are transferred to the nominal shareholder after the two parties reach an agreement.The actual investor only has the investment interest of creditor’s right against the nominal shareholder,and this right cannot confront the enforcement by the creditors of the nominal shareholder.In judicial practice,the disputes arising from dormant capital contribution also include two kinds of equity transfer disputes in addition to this case.The two disputes are both related to the ownership of the nominee equity interests.Therefore,in this article,we discuss the following two kinds of disputes:(1)the dispute arising from the nominal shareholder transferring the equity interests to a third party without the consent of the actual investor;(2)the dispute arising from the nominal shareholder refusing to perform and claiming for the corresponding equity interests when the actual investor and a third party enter into the equity transfer agreement.In the first situation,if the nominal shareholder transfers the equity interests to a third party without the consent of the actual investor,the actual investor shall not confront the third party,unless the nominal shareholder maliciously colludes with the third party to the detriment of the actual investor’s interests.The latter may claim that the equity transfer is valid,and the bona fide acquisition system is not required to apply.In the second situation,the actual investor transfers its dormant investment status,and the relevant legal provisions on the general transfer of the creditor’s rights and debts apply. |
