| Anonymous investment is widely used in practice.Anonymous capital contribution refers to the act of an actual investor making actual capital contribution to the company in the name of another person,causing the other person to be registered as the shareholder of the company in the industrial and commercial registration.Since the actual investor’s anonymous equity contribution is registered under the name of the nominal shareholder,when the claims of nominal shareholder’s creditors cannot be fulfilled and the creditors are applying for enforcement,the actual investor’s anonymous equity contribution is often on the list of enforceable properties,and the equity rights held by the actual investor is also in the danger of being enforced.In order to realize the creditor’s rights,the nominal shareholders’ creditors often seek to enforce the equity holdings under the name of nominal shareholders,which leads to the confrontation between actual investors and nominal shareholders’ creditors.Based on the analysis of courts’ judgments in judicial practice,this paper finds that there are three core issues in the judgment of whether the actual investor can exclude the nominal shareholders’ creditors from enforcing the anonymous equity holding.Firstly,the unclear identification of the ownership of the anonymous capital contribution,on which current law in our country makes no provision.Secondly,it is so hard to determine the legal nature of the behavior,i.e.,the actual investor and the nominal shareholder agreeing on anonymous investment,so it is difficult to determine what kind of rights the actual investor holds against the nominal shareholder and the boundary of the rights.Thirdly,the dispute on the subject of applying theory of Rechtsschein and the differences on the scope of protected trust interests.At present,there is no clear stipulation relevant to the above-stated questions in legislation,and there is almost no relevant content in the Company Law of the People’s Republic of China(hereinafter Second Draft Amendment).Different answers given by the courts on these three questions lead to different judgments in the face of similar cases.It is not uncommon for cases with same facts to have different judgments.There is a difference between the substantive theory and the formal theory about the actual ownership of the anonymous equity contribution.Only in the five articles of Interpretation(III)of the Company Law,there are already fierce disputes on substance and form: Article 22,23 and 25 adopt the substantive theory when identifying owners of anonymous investment,and Article 24 and 26 adopt the formal standard.Therefore,it is suggested to separate ownership and shareholder qualification,to endow the ownership with property nature to the actual investor,and simultaneously to endow the shareholder qualification with identity nature to the nominal shareholder,in combination with industrial and commercial registrations.Following this logic,when the nominal shareholders and creditors enforce equity rights,if the property interests of the shareholders under anonymous investment are infringed,the actual investor,as the equity owner who enjoys property interests,has the right to exclude nominal shareholders’ creditors from enforcing equity rights under the anonymous investment rights.Secondly,the scope of application of theory of Rechtsschein is clear.The premise of the application of theory of Rechtsschein is that the third party has made a disposition behavior based on trust of the apparent facts.Once it is confirmed that the party involved in the transaction conforms to the requirements of theory of Rechtsschein,the protection of the party’s trust interest is not limited to the transaction stage or the enforcement stage.In the current procedural law,when an outsider,that is,the actual investor,has an objection to the compulsory enforcement,he/she must first put forward the objection to the enforcement court as a pre-procedure.However,due to the concern of efficiency,the enforcement court normally only conducts a formalistic review with reference to industrial and commercial registration records,resulting in a simple repetition of the enforcement procedure,which is not contributing to the improvement of efficiency.It is suggested that the principle of combining form and substance should be adopted in the examination of outsiders’ objections,and reference should be made to the strong evidence such as the anonymous investment contract put forward by outsiders,so as to give full play to the institutional significance of the implementation of outsiders’ objections.After the outsiders’ claim is rejected,the actual investor can choose to file either a lawsuit concerning the objection of outsiders or a lawsuit seeking to confirm the rights attached to equity.In order to save judicial resources and improve litigation efficiency,it is suggested to make actual investor file the lawsuit concerning dissidence of outsiders.In this paper,the substantive and procedural problems relating to the compulsory enforcement of anonymous equity holdings are sorted out systematically,and suggestions are put forward respectively,in order to guide legislative and judicial practice.Clarifying the issue of compulsory enforcement of equity rights under anonymous investment can not only protect the interests of the parties,but also realize the fairness of enforcement,maintain judicial authority and improve judicial credibility. |
