In a loan investment relationship, the borrower is only a nominal investor and is not an actual investor, nor does it actually participate in the company's operations. The actual investment, participation in operations, and exercise of equity are all actual investors, which is the essential difference between borrowed investment and dormant investment. This article will combine case studies to analyze the practical issues of loan name investment disputes, in order to guide enterprises in preventing relevant risks in production and operation.

一、The actual investor borrows the name of another person to exercise their equity, and borrowing the name of a shareholder does not exercise their equity

Unlike pseudonym registration, there is a consensus between the actual investor and the borrower in the borrowing registration regarding the borrowing of capital. In this regard, borrowed investment and anonymous investment are relatively similar, and both of these behaviors of separating name from reality originate from the mutual agreement between the actual investor and the nominal investor. However, borrowed investment and anonymous investment are not the same. The difference between the two is that in borrowed investment, the borrower does not exercise equity, and the equity is exercised by the actual investor; In anonymous investments, the nominal shareholder is not only the equity registrant but also the actual exercise of equity.

Due to the lack of clear provisions in the Company Law on whether borrowed capital contributions can obtain shareholder qualifications, the judicial attitude towards such behavior in judicial practice is not entirely consistent. The issue of whether borrowed investors can obtain equity qualifications cannot deviate from the nature of the Company Law as a group law. As a group law, the Company Law should consider the rules followed by the group law when dealing with the relationship between companies, shareholders, and third parties. Some legal relationships under group law should prioritize the application of group law rules, such as the relationship between the company and shareholders. Some legal relationships under personal law should prioritize the application of personal law rules, such as investment agreements. Therefore, in terms of external relations, the borrower appears as a shareholder in the company law, and as a third party in the transaction relationship, it is impossible to explore the true situation behind the company. To protect transaction safety, in practice, the principle of appearance should be followed, and the borrower shareholder should bear the civil liability that the shareholder should bear.

Between the actual investor and the borrower, according to substantive legal facts, the actual investor actually contributes and exercises all shareholder rights. Although the borrower is a shareholder registered in the shareholder register, as the borrower has no intention of becoming a shareholder of the company or exercising company equity, the borrower does not have any actual rights or obligations to the actual investor. This is different from anonymous investment, in which the nominal shareholder exercises equity, and according to the agreement between them and the actual investor, the nominal shareholder should bear corresponding contractual responsibilities towards the actual investor.

If there is evidence to prove that a registered shareholder was only named by someone else, did not participate in the governance of the company, did not enjoy true shareholder rights, and did not fulfill shareholder obligations, then the law will not protect their rights as shareholders. Because fulfilling the obligation to contribute to the company is the basis for enjoying shareholder rights, and registered shareholders who have not actually contributed will not enjoy shareholder rights such as the company's right to know, voting, voting, and being elected, transfer of investment rights, and profit rights based on their contributions. On the contrary, when the company is insolvent, due to the public disclosure of its shareholder identity, the private borrowing behavior between the actual investor and the registered shareholder cannot confront a bona fide third party. Therefore, the borrower not only does not enjoy the rights of a shareholder, but also has the legal risk of bearing joint and several liability for the company's debts within the scope of the actual investor's unpaid capital contribution.

二、Standards for Identifying Borrowed Shareholders in Practice

Case: Intermediate people's court of Wuhan City, Hubei Province, 2014 EWHZMSZZ No. 00888. In 2001, Huang borrowed the ID cards of Xiao and Qin to establish a certain technology company and applied for capital verification by purchasing invoices as physical contributions. The registered capital paid by all shareholders is 500000 yuan, of which Huang, Ran, Qin, and Xiao each contributed 125000 yuan. On August 5, 2003, a technology company held a shareholders' meeting to increase its registered capital by 1.5 million yuan. After the increase in registered capital, the proportion of shares held by Huang was changed to 81.25%, and the proportion of shares held by Ran, Qin, and Xiao was changed to 6.25%. Xiao did not attend the shareholders' meeting and did not sign the resolution of the shareholders' meeting. A certain technology company has registered its equity change with the industry and commerce department. On April 28 and 29, 2005, a technology company held another shareholders' meeting and decided that shareholders Qin and Xiao would transfer their 125000 yuan investment in the company to Ran. Huang and Ran signed on behalf of Xiao and Qin on the shareholder meeting change resolution. The next day, Ran issued and signed the "Capital Contribution Transfer Agreement", and Huang replaced Xiao in signing the "Capital Contribution Transfer Agreement". On March 4, 2013, Xiao filed a lawsuit to the court requesting confirmation of his shareholder status and restoration of his 25% stake in XX Technology Company.

The first instance court held that one of the focuses of controversy in this case was whether Xiao was a shareholder of a certain technology company when it was established. According to Article 1 of the Interpretation 3 of the Company Law of the Supreme People's Court, a person who signs the company's articles of association, subscribes to the company's capital or shares, and fulfills the company's establishment responsibilities for the purpose of establishing a company shall be recognized as the initiator of the company, including the shareholders at the time of the establishment of a limited liability company. The court held that Xiao claimed that he was a shareholder of a certain technology company at the time of its establishment, and the necessary conditions were to sign the articles of association of the company and subscribe to the capital contribution of the company. The signature of Xiao displayed on the articles of association of a certain technology company was not personally signed by him, but by Huang and Ran. This is an act of impersonating someone else's name to make capital contributions and registering them as shareholders with the company registration authority. The person who impersonates the registration should bear corresponding responsibilities. Huang and Ran should bear the legal responsibility for the capital contribution obligations of the impersonated person and for not fulfilling their obligations. If Xiao recognizes the validity of Huang and Ran's signatures on their behalf, they should fulfill their investment obligations as stipulated in the articles of association. It was also found that the registered capital verification basis for the establishment of a certain technology company was based on invoices obtained through purchase, and there were no physical transactions. The invoice indicates that the price of the goods is much higher than the actual price of similar products, which proves that the registered capital verification certificate of a certain technology company at the time of establishment is a false investment without physical investment. During the trial, Xiao stated that he had delivered 125000 RMB to Huang as registered capital contribution, but he was unable to present Huang's receipt or proof of contribution issued by a certain technology company. Therefore, Xiao's claim to confirm that he is a shareholder of a certain technology company lacks factual basis. The court subsequently rejected Xiao's lawsuit request.

In the second instance trial of the Wuhan Intermediate People's Court, it was believed that borrowing a name includes three possible legal relationships: pure borrowing and anonymous relationships, as well as actual shareholders. Firstly, in the dormant investment relationship formed by borrowing a name, a consensus should be formed between the actual investor and the nominal investor regarding the borrowing of a name for investment, so that the nominal investor is aware of and recognizes the situation of such borrowing registration. Simply borrowing names from shareholders does not actually invest or participate in the company's operations, nor does it exercise shareholder rights. In this case, Huang did not submit evidence to prove the existence of an anonymous investment relationship with Xiao; On the contrary, Xiao participated in the formulation of a series of documents such as the "Decision of the Company's Shareholders' Meeting on the Establishment of the Board of Directors" and the "Decision of the Company's Shareholders' Meeting on the Appointment of Members of the Company's Supervisory Board" during the establishment process of a certain technology company. After the company was established, he participated in the meeting of a certain technology company on May 8, 2002, and participated in discussions on the company's sales system, personnel system, and shareholder fund ratio. The above facts indicate that Xiao is not only a borrowing shareholder of a certain technology company, but also has the willingness and behavior to participate in the company's operation and management, and has formed a named shareholder. However, Huang did not submit evidence such as an anonymous investment agreement, which does not constitute anonymity. Secondly, failure to fulfill the investment obligation does not result in the loss of shareholder qualification. Although Xiao has not proven that he has fulfilled the investment obligations of a certain technology company, according to Article 13 and Article 18 of the Interpretation 3 of the Company Law of the Supreme People's Court, when shareholders fail to fulfill or fully fulfill their investment obligations, the company.

The borrower shall not exercise equity in the borrowed investment, and the equity shall be exercised by the actual contributor; In anonymous investments, the nominal shareholder is not only the equity registrant but also the actual exercise of equity. When the company is unable to repay its debts, due to the public disclosure of its shareholder identity, the private borrowing behavior between the actual investor and the borrower cannot confront a bona fide third party. Therefore, the borrowing shareholder not only does not enjoy the rights of a shareholder, but also has the legal risk of bearing joint and several liability for the company's debts within the scope of the actual investor's unpaid capital contribution, Therefore, in reality, it is necessary to avoid various reasons such as favoritism to replace others as shareholders of the company. Guoling Law Firm will fully leverage its professional advantages to effectively help enterprises prevent relevant legal risks; We will also provide more forms and diverse legal service projects for enterprises based on industry development and actual conditions, guiding scientific decision-making and standardizing development.