What is the legal provision for legal disputes between actual investors and nominee shareholders?

Answer: In commercial practice, it is not uncommon for the person named in the relevant documents of the company (nominee shareholder) to be separated from the real investor (actual investor) for various reasons, and the two parties sometimes have disputes over the attribution of equity investment income. We believe that if the nominee shareholder and the actual contributor agree that the nominee shareholder will exercise the equity in advance, but the actual contributor shall enjoy the investment rights and interests, this is a free agreement between the two parties, and according to the spirit of freedom of contract, if there are no other illegal circumstances, the agreement should be valid, and the actual contributor can claim the relevant rights and interests against the nominee shareholder in accordance with the contract.

Therefore, we have made such a provision in Interpretation (3). On the other hand, we believe that the second paragraph of Article 33 of the Company Law stipulates that the registration in the register of shareholders is the identity basis used by the nominee shareholder (i.e. the registered person) to claim rights against the company or raise a defense against the company, but not the basis for the nominee shareholder to oppose the actual contributor, so the nominee shareholder cannot defend against the actual contributor on the basis of it. Similarly, although paragraph 3 of Article 33 of the Company Law stipulates that a nominee who has not registered with the company registration authority shall not oppose a third party, we believe that in the event of a dispute between the nominee shareholder and the actual contributor over the qualification of the shareholder, the nominee shareholder is not a "third party" here, so the nominee shareholder may not deny the contractual rights of the actual contributor on the basis of such registration.

As between the actual investor and the nominee shareholder, the investment rights and interests of the actual investor shall be determined in accordance with the contract between the two parties and protected in accordance with law. However, if the actual investor requests the company to change shareholders, issue a certificate of capital contribution, record it in the register of shareholders, record it in the articles of association of the company, and register with the company registration authority, etc., then the requirements of the actual investor have already exceeded the scope of the aforesaid contract between the two parties, and the actual investor will enter the company from outside the company and become a member of the company. In this case, the transfer of equity by a shareholder to a person other than a shareholder with reference to the second paragraph of Article 72 of the Company Law shall be subject to the consent of more than half of the other shareholders, and we stipulate that the consent of more than half of the other shareholders shall be obtained in this case. ：

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Legal analysis: Nominee shareholders, also known as nominee shareholders, and sometimes head shareholders, refer to the agreement between one party and the other party to participate in the establishment of the company only in its name, but in fact do not make capital contributions, and the registered capital of the company is invested by the other party, and the party that does not contribute capital is the nominee shareholder. In practice, some company investors are unwilling to participate in the company in their true capacity due to various reasons, but in order to enjoy the company's operating income through investment, they name the company in the name of another person, so that the other person becomes a shareholder in the formal sense of the company, and the investors themselves enjoy shareholder rights behind the scenes.

In this case, the investor is the actual shareholder and the other is the nominee shareholder.

According to the General Principles of China's Civil Law and the relevant provisions of the Company Law, the name and title of the investor are not the necessary express conditions for the company to obtain the legal personality, so the name or title of the shareholder recorded in the company registration authority does not have the effect of creating the qualification of the shareholder.

Legal basis: Formulation of the Supreme People's Court on Issues Concerning the Application of the Company Law of the People's Republic of China (III) Article 25 Where the actual contributor of a limited liability company enters into a contract with the nominal investor, stipulating that the actual contributor shall contribute capital and enjoy investment rights and interests, and the nominal contributor shall be the nominal shareholder, and there is a dispute between the actual contributor and the nominee shareholder over the validity of the contract, the people's court shall find the contract valid unless there is any circumstance provided for in Article 52 of the Contract Law. Where a dispute arises between the actual contributor and the nominee shareholder over the ownership of investment rights and interests as provided for in the preceding paragraph, and the actual contributor claims rights against the nominee shareholder on the grounds that the actual investor has actually fulfilled its obligation to make capital contributions, the people's court shall uphold it.

Where the nominee shareholder denies the rights of the actual investor on the grounds that it is recorded in the company's register of shareholders or registered with the registration authority of the company, the people's court will not support it. Where the actual contributor requests the company to change shareholders, issue a certificate of capital contribution, record it in the register of shareholders, record it in the articles of association, and register with the company registration authority without the consent of more than half of the other shareholders of the company, the people's court will not support it.

Legal analysis: According to the provisions of the Company Law of China, the shareholders of a limited liability company are liable to the company to the extent of their subscribed capital contributions; Under normal circumstances, the shareholders of the company are the investors of the company, as long as the investors have paid the full amount of the subscribed capital contribution or the funds corresponding to the subscribed shares or the physical assets in accordance with the law, they can enjoy the rights of shareholders and fulfill the obligations of shareholders in accordance with the provisions of laws, administrative regulations and articles of association.

Legal basis: Company Law of the People's Republic of China Article 20 The shareholders of the company shall abide by the laws, administrative regulations and the articles of association of the company, exercise their rights as shareholders in accordance with the law, and shall not abuse their rights to damage the interests of the company or other shareholders who are hungry; The independent status of the company's legal person and the limited liability of shareholders shall not be abused to harm the interests of the company's creditors.

1) The actual investor enters into a contract with the nominal investor. If the actual contributor and the nominal contributor enter into a contract, stipulating that the actual contributor shall contribute capital and enjoy investment rights and interests, and the nominee investor shall be the nominee shareholder, and there is a dispute between the actual contributor and the nominee shareholder over the validity of the contract, the people's court shall find that the contract is valid unless there is no circumstance that the contract is invalid as provided for in the Civil Code (in force). Between the actual investor and the nominee shareholder, the investment rights and interests of the actual investor shall be determined in accordance with the contract between the two parties and protected in accordance with law.

2) Ownership disputes. Where a dispute arises between the actual investor and the nominee shareholder over the ownership of investment rights and interests, and the actual investor claims rights against the nominee shareholder on the grounds that the actual investor has actually fulfilled its obligation to make capital contributions, the people's court shall support it.

3) The actual investor becomes a shareholder member of the company. If the actual investor does not request the company to change its shareholders, issue a certificate of capital contribution, record it in the register of shareholders, record it in the articles of association, and register with the company registration authority without the consent of more than half of the other shareholders of the company, the people's court will not support it.

4) Disposal of equity by the nominee investor. Where 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 be invalid on the grounds 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 it.

Legal basis: Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China (III).

Article 25 Where the actual contributor of a limited liability company enters into a contract with the nominal investor, stipulating that the actual contributor shall make capital contribution and enjoy investment rights and interests, and the nominal contributor shall be the nominal shareholder, and the actual contributor and the nominee shareholder have a dispute over the validity of the contract, the people's court shall find that the contract is valid unless there are any circumstances provided for in Article 52 of the Contract Law.

Where a dispute arises between the actual contributor and the nominee shareholder over the ownership of investment rights and interests as provided for in the preceding paragraph, and the actual contributor claims rights against the nominee shareholder on the grounds that the actual investor has actually fulfilled its obligation to make capital contributions, the people's court shall support it. Where a nominee shareholder denies the actual investor's right to discover on the grounds that it is recorded in the company's register of shareholders or registered with the company's registration authority, the people's court will not support it.