Article 69 Where a shareholder provides a guarantee for the performance of debts by transferring its equity to the creditor's name, and the company or the company's creditors request that the creditor as the nominee shareholder bear joint and several liability with the shareholder on the grounds that the shareholder has not performed or has not fully performed the obligation to make capital contributions, or has withdrawn the capital contribution, the people's court shall not support it.
【Purpose of the Article】
This article is about the determination of the liability of creditors as nominee shareholders in the case of equity transfer guarantee.
【Overview of Provisions】
The purpose of this article is to stipulate whether the creditor, as the nominee shareholder, should bear the obligation of the shareholder's capital contribution and related liabilities in the case of equity transfer guarantee. In the guarantee of equity transfer, it is necessary to distinguish between the legal relationship between the equity transferee and the company, and the legal relationship between the equity transferee and the external third party. The shareholder transfers its equity to the creditor's name to guarantee the debtor's performance of debts, and the creditor only receives the equity in name and does not have the status of a shareholder, does not enjoy the rights related to the identity of the shareholder, such as voting and dividends, and does not bear the obligation of capital contribution and liquidation, and does not bear legal responsibility for the company's debts. Therefore, if the nominee shareholder does not bear joint and several liability for the defective capital contribution of the original shareholder, and the company or the company's creditors request that the creditor as the nominee shareholder and the shareholder bear joint and several liability on the grounds that the shareholder has not fulfilled or has not fully performed the capital contribution obligation or has withdrawn the capital contribution, the people's court will not support it.
【Controversial Views】
When the parties agree to provide security for the debt by transferring the equity to the creditor, and the creditor thus becomes the nominee shareholder of the company, there is a dispute in practice as to whether the company or the company's creditors can require the nominee shareholders to bear joint and several liability when the shareholders fail to perform their capital contribution obligations or fail to fully perform their capital contribution obligations. There is a view that if the creditor receives the equity and completes the relevant equity change registration with the industrial and commercial department, the industrial and commercial change registration has publicity and credibility on the identification of the shareholder, and it should be deemed that it has obtained the identity of the company's shareholder, and the internal agreement between the parties on the equity transfer guarantee shall not be against a third party, and the third party is not bound by the internal agreement of the parties, so the nominee shareholder shall bear joint and several liability. Another view is that the nominee shareholder does not obtain shareholder qualifications for the purpose of equity transfer guarantee, and is not a shareholder in the true sense, and it often pays consideration for the acquisition of equity, so it should not be jointly and severally liable.
[Understanding and Application]
1. Equity transfer guarantee and related systems
Assignment of security means that the debtor or a third party transfers the ownership of the collateral to the creditor in order to guarantee the performance of the debt, and the collateral shall be returned to the debtor or the third party after the debt is repaid; When the debt is not paid, the creditor may be repaid in respect of the collateral in a form of security. In judicial practice, equity transfer guarantee is widely used, unlike movable property and immovable property transfer guarantee, which only involves property rights, equity has the dual attributes of property rights and membership rights, and the rights and obligations of nominee shareholders are more complex due to the characteristics of equity and the participation of the company, so it is necessary to conduct a special analysis of equity transfer guarantee.
(1) Equity transfer guarantee and equity transfer
In terms of form, equity transfer guarantee is often manifested as equity transfer, but the two are different in nature and should not be confused. On the one hand, from the perspective of the purpose of the contract, the equity transfer is an agreement signed by the parties for the purpose of transferring the equity, the seller's main obligation is to transfer the equity, and the buyer's main obligation is to pay the equity transfer price. The purpose of the equity transfer guarantee is to provide security for the main debt, and the transferee usually does not pay consideration for it, and the transferee is not allowed to exercise shareholder rights and dispose of the transferred equity before the debt repayment period. On the other hand, as an atypical guarantee, the equity transfer guarantee belongs to the category of subordinate contracts. Correspondingly, there is often a master contract, and there is generally no similar problem with the transfer of equity. Therefore, the existence of a main contract is an important criterion for judging whether an agreement is an equity transfer agreement or an equity transfer guarantee.
(2) Equity transfer guarantee and equity pledge
Equity pledge is a statutory security interest, while equity transfer guarantee is an atypical security, and whether it has the effect of a real right depends on whether the equity has been transferred and registered. Although we believe that the equity transfer guarantee that has been publicized is similar to the equity pledge in terms of effect, the two are not exactly the same, mainly in the case of equity transfer guarantee, there is a problem of inconsistency between the outside and the outside: in terms of internal relationship, according to the true intention of the parties, it should be recognized as a guarantee. However, in terms of external relations, based on the commercial appearance doctrine, the transferee still has to bear the liability of shareholders under certain circumstances; If the transferee transfers the equity to another person, the other person may acquire the equity in accordance with the bona fide acquisition system.
(3) Equity transfer guarantee and real debt of famous shares
Actual debt is not a legal concept in the strict sense, but a general term for the investment method in judicial practice that obtains a fixed return by becoming a nominee shareholder of the target company, which can be classified differently according to different criteria. From the perspective of the subject of paying fixed returns, it can be divided into two situations: payment by the target company and payment by the company's shareholders; From the perspective of the contract method of fixed return, there are two types of equity repurchase and difference compensation; From the perspective of the rights enjoyed by investors, it is difficult to generalize that there are debts and equity. From the perspective of the problems faced, the equity transfer guarantee mainly involves the nature and effectiveness of the guarantee, while in addition to the nature and effectiveness of the actual debt of the famous shares, it is often closely related to whether the nominee shareholder constitutes a withdrawal of capital contribution in practice. In addition, from the perspective of the number of contracts, the equity transfer guarantee, as a subordinate contract, is concluded to guarantee the debt under the main contract, so there are often two contracts for the equity transfer guarantee. Of course, if the investor actually enjoys creditor's rights, the nominal equity transfer or capital increase and share expansion agreement can be interpreted as a loan contract that provides security by way of equity transfer. In this case, one contract in form contains two contracts in substance. However, if the investor enjoys equity, the equity transfer or capital increase and share expansion agreement is the true expression of the intention of both parties, and the equity repurchase clause is just one of the terms, which is still a contract.
2. External effect of equity transfer guarantee
Equity transfer guarantee is a special form of transfer guarantee, and the general provisions on transfer guarantee in Article 68 of the Interpretation of the Guarantee System of the Civil Code are also applicable to equity transfer guarantee. However, the registration of equity transfer in the guarantee of equity transfer involves the issue of whether the creditor has the status of a shareholder, whether it can enjoy the rights of shareholders in accordance with the provisions of the Company Law, and bear the corresponding liabilities.
(1) The relationship between the nominee shareholder and the company
After the parties have approved the equity transfer security arrangement, the creditor has gone through the registration procedures for the change of equity in accordance with the provisions of the equity transfer contract, so that the creditor becomes a nominee shareholder, but the creditor, as a nominee shareholder, does not have the actual shareholder qualifications and is not allowed to exercise shareholder rights against the company.
First, from the essence of the security interest, the security interest is to control the exchange value of the collateral for the purpose of ensuring the realization of the creditor's rights, and the security interest does not lie in the direct control of the collateral, but in the direct control of the exchange value of the collateral. Therefore, in the equity transfer guarantee, the equity as collateral only plays the role of guaranteeing the realization of the creditor's right, and the purpose of the transferee becoming a nominee shareholder is also to ensure that the creditor's right can be realized when it matures by directly controlling the exchange value of the equity. The purpose of the transferee's control over the transferred rights is to receive full priority compensation only within the scope of the security, and cannot directly obtain ownership and complete control according to the agreement. In this case, the shareholder as the transferor does not lose the shareholder qualification and shareholder rights, and the creditor as the transferee cannot exercise the shareholder rights.
Second, from the perspective of the handling of the registration procedures for the change of equity transfer, the subject of the application for the change registration of shareholders is the company rather than the shareholder, and the preemptive right of other shareholders is also involved in the process of equity transfer. Therefore, in the process of equity transfer guarantee, shareholders will generally inform the company and other shareholders of the true purpose of the registration of equity transfer and equity change, and even if the transferee is recorded in the company's register of shareholders, it is only a nominee shareholder and cannot oppose the company and other shareholders. In this case, the transferee, as a nominee shareholder, does not enjoy shareholder rights, and does not enjoy either property rights in the equity or membership rights in the equity. Even if the shareholder, as the transferor, does not inform the company and other shareholders of the true situation, but only informs that it is an equity transfer, once the equity change is registered and the transferee is recorded in the register of shareholders, it shall be presumed that the transferee has the qualifications of a shareholder, but the company, other shareholders and the transferor can still provide evidence to prove that the true intention of the equity transfer is to guarantee the transfer, and the nominee shareholder still cannot enjoy the shareholder qualification.
(2) The relationship between nominee shareholders and the company's creditors
According to the relevant provisions of the Interpretation (III) of the Company Law, the creditors of a company have the right to require the nominee shareholders to bear supplementary liability or joint and several liability, such as the nominee shareholder's assistance in withdrawing capital contributions, the existence of an anonymous investment agreement between the nominee shareholder and the actual contributor, or the transfer of equity by the nominee shareholder despite knowing that the shareholder has withdrawn the capital contribution, for example, according to Article 14, Paragraph 2 of the Interpretation (III) of the Company Law. Where a creditor of the company requests that the shareholder who withdraws the capital contribution bear supplementary liability for the part of the company's debts that cannot be paid off within the scope of the interest on the withdrawn capital, and that other shareholders, directors, senior managers or actual controllers who assist in withdrawing the capital contribution bear joint and several liability for this, the people's court shall support it; If the shareholder who withdraws the capital contribution has already borne the above-mentioned liabilities, and other creditors make the same request, the people's court will not support it. However, the aforesaid rules of the Company Law Interpretation (III) do not take into account the circumstances of equity transfer guarantee by default. Under the mode of equity transfer guarantee, the creditor becomes the nominee shareholder after the transfer of equity, and the actual status of the nominee shareholder is that of the creditor and does not bear the obligation to make capital contributions, and there is an essential difference between the equity transferee and the nominee shareholder who should be liable as above. Therefore, the people's court should not support the claim of the company's creditors that the creditors of the nominee shareholders bear joint and several liability on the grounds that the shareholders have not fulfilled or have not fully fulfilled their capital contribution obligations or have withdrawn their capital contributions.
Although the creditor of the company cannot hold the creditor as the nominee shareholder liable, on the basis of ascertaining the facts of the case, it may require the transferor, as the actual shareholder, to bear the corresponding liability for the defect of the capital contribution.
3. Realization of equity transfer guarantee
When the debtor fails to perform the due debts after the expiration of the debt performance period, and the creditor claims to realize the security interest, how to determine the price of equity as collateral should be treated differently according to the nature of the company. If it is a public company, it is relatively easy to determine because its equity has a market price, but there is a possibility that the equity price may change greatly in the short term, so the time point of equity liquidation should be determined first, so as to determine the scope of preferential repayment by creditors. In the case of a limited liability company, since there is no public price in the market, the parties should try to reach an agreement on the equity price after the fact, if no agreement can be reached on this, the price of the equity can only be determined through auction, sale, etc., but the preemptive right of other shareholders should be considered at this time.
[Practical issues]
In determining whether a transaction is an equity transfer or an equity transfer to the creditor's name to provide security for the performance of debts, the people's court should start from the essential difference between the two and identify whether the true intention of the parties is to obtain consideration for the transfer of equity or to provide security for debts by way of equity transfer. Whether shareholders enjoy and exercise shareholder rights.