A Study On Legal Liability Of The Actual Investor

The actual investors are investors who subscribe the shares of the company, but are recorded in the name of others in the articles of incorporation, the register of shareholders and the business registration. The theoretical circles have three doctrines in terms of the legal status of the actual investors, namely,"theory of essence"、"theory of formation" and" compromise theory ".Supreme People’s Court’s rules of Certain Issues Concerning the Application of The Company Law of the People’s Republic of China (part three) developed the "compromise theory",which stipulated that the actual investors not only have the shareholders’ status inside, but also become the official shareholders of the company to some extent. According to the involving legal relationship, the legal liability of actual investors can be divided into three categories:legal liability of the actual investors to dummy shareholder legal liability of the actual investors to the company、legal liability of the actual investors to the third party. The actual investors’ liability to the dummy shareholders is mainly based on the contractual liability of the anonymous contribution agreement, which should respect the agreement of the parties to deal with the allocation of rights and obligations of both sides on the circumstances not violate the mandatory provisions of law. The actual investors’ liability to the company should be determined on the basis of whether the actual shareholders exercised their rights or not. When the actual investors can not exercise shareholders’ rights, the dummy shareholders shall undertake the liability to company. When the actual investors exercised the shareholders’ rights, the actual investors and the dummy shareholders should undertake the joint and several liabilities to the company. When defining the actual investors’ legal liability to the third party, it is necessary to protect the maximum benefit of the third party acting in good faith. Consequently, although the actual investors do not have shareholders’ status outside, they should assume joint and several liabilities to third party with the dummy shareholders in the case of knowing the truth. In deciding the actual investors’ legal liability, we have to respect the party autonomy in private law, and apply the articles of association of the company and the anonymous contribution agreement first. When the disputes involving anonymous contribution, special attentions should be paid to the interests the third party acting in good faith, if necessary, the actual investors should take on joint and several liabilities to the company and the third party.