Question raised

A is a relative of B, and at B's request, helped B hold shares of Company A on behalf of him, and was registered as a shareholder of Company A. Unexpectedly, one day, A received a notice from the court that due to A company's failure to repay its external debts, A was sued by creditors for not actually contributing capital and demanded that A, as a shareholder, repay the company's debts. Coincidentally, Xiao Zhang is a foreign Chinese. Due to investment policy restrictions, as an anonymous shareholder, Xiao Zhang asked a friend to hold his shares in Company A. However, over time, when a friend saw that Company A had a considerable dividend, he had the idea of occupying the nest of magpies. Xiao Zhang was very anxious and hoped to confirm his identity as a real shareholder.

Lawyer analysis

1、 Anonymous shareholders and visible shareholders

Anonymous shareholders refer to those who establish a company in the name of others or make contributions in the name of others, and have others hold shares on their behalf. Shareholders are recorded as contributors in the company's articles of association, shareholder register, and business registration. Correspondingly, named shareholders refer to shareholders who have not actually contributed or whose contributions do not match the registration information recorded in the industrial and commercial registration. Due to the inconsistency between the actual shareholders and the publicly disclosed shareholders, disputes often arise in practice.

2、 Common Legal Risks

1. If the anonymous shareholder fails to contribute as agreed, the named shareholder shall bear legal responsibility. According to relevant laws and regulations, creditors of a company may demand that shareholders who fail to fulfill their capital contribution obligations be held responsible for the company's debts.

2. The company is involved in illegal and criminal activities, and its prominent shareholders are implicated. Due to the fact that the named shareholders are only nominal and do not actually manipulate the company, once the company is involved in illegal activities, the named shareholders may be affected.

3. The anonymous shareholder is occupied by the named shareholder. Mingming shareholders have a certain degree of control over the equity, and voting on major company decisions, dividends, equity transfers, and so on are all made by Mingming shareholders. Once the named shareholders do not cooperate, the anonymous shareholders will be put in a passive position.

4. The private affairs of the named shareholder resulted in the disposal of the equity of the anonymous shareholder. For example, if a named shareholder becomes the executed person, the equity may become the executed property. The death or divorce of a prominent shareholder will also result in the shares becoming the subject of disposal and division.

3、 Dispute Resolution

1. Confirm the identities of anonymous and named shareholders. The primary task of assigning responsibility is to confirm the identity of the subject. The proxy agreement is a clear basis for determining the identity of anonymous shareholders as actual contributors. In addition, in practice, the court generally makes a comprehensive determination based on various factors such as whether the anonymous shareholder has actually contributed to the company, whether more than half of the other shareholders of the company agree to recognize the identity of the anonymous shareholder, and whether there is other evidence to prove that the anonymous shareholder is the actual contributor.

2. The named shareholder seeks compensation from the anonymous shareholder. According to the law, if the creditors of a company demand that the named shareholder bear responsibility for the company's debts on the grounds that the named shareholder has not contributed capital, the court generally supports the responsibility of the named shareholder. However, the law also stipulates that in this situation, the named shareholder may seek compensation from the anonymous shareholder after assuming the liability for compensation.

3. Recovering the losses of 'Jiu Zhan Magpie Nest'. According to relevant laws and regulations, if a named shareholder transfers, pledges, or disposes of the equity registered under their name in any other way, a hidden shareholder may request the court to recover it. And demand compensation for the losses caused by the named shareholders.

4、 Risk avoidance

According to the law, if a dormant shareholder wishes to request the company to change them to a named shareholder, issue a capital contribution certificate to them, record them in the shareholder register or company articles of association, or request registration with the company registration authority, they must obtain the consent of more than half of the other shareholders of the company. It can be seen that the law attaches great importance to the attitude of other shareholders. Therefore, in the event of proxy shareholding, it is recommended to ensure that more than half of the other shareholders of the company provide written confirmation and recognize the proxy shareholding relationship.