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On 14 May 2020, the Shanghai No. 1 Intermediate Court (hereinafter “Appellate Court”) publicly announced the result of a dispute over the qualification of a foreign shareholder. The Appellate Court found that a foreign individual, is an anonymous shareholder of a domestic company and has the right to claim back his equity. This case is the first one in China where a foreign individual has requested the confirmation of his shareholder status since the implementation of the Foreign Investment Law on 1 January 2020.2020年5月14日，上海市第一中级人民法院（以下简称上海中院）公开宣判一起涉外股东资格确认纠纷上诉案，二审认定境外自然人虽为外籍，但确系境内公司的隐名股东，有权依据合同约定取回股权。该案系《外商投资法》于2020年1月1日施行后全国首例境外自然人要求确认股东资格案。
In 2009, Mike Cheng and Zhang Yan met each other and wanted to start their business jointly. However, according to the then "People's Republic of China Sino-foreign joint venture law" (hereinafter "JV law"), Mike Cheng, as a foreign individual, Zhang Yan, as a Chinese, could not set up a joint venture. To solve this problem, Mike Cheng asked his brother Tony Cheng, a Chinese citizen to join them.2009年，程岸(Mike Cheng)和张严（ZhangYan）因创业相识， 可程岸是外国国籍，根据当时的《中华人民共和国中外合资经营企业法》（以下简称《中外合资经营企业法》）相关规定，程岸和作为中国公民的张严无法共同创办合资企业。为解决这个难题，程岸让有中国国籍的弟弟程晓(Tony Cheng)参与进来。
On 3 November 2009，Mike Cheng transferred to Zhang Yan 260,000RMB, which was Mike’s capital contribution invested in the name of Zhang Yan. At the same time, Zhang Yan and Tony set up Junda Company.Later on, the three parties signed an " Equity share agreement" and specified: "As a foreigner, Mike is unable to set up a joint venture with Chinese individuals currently", hence "Junda company will be set up in the name of Zhang Yan and Tony initially. When the situation presents itself, Mike shall set up a joint venture with Junda company." As to the actual investment ratio, the agreement made it very clear: "Mike 51%, Zhang Yan 25%, Tony 24%." ( Note: The actual ownership of equity is: Mike 51%, Zhangyan 25%, Tony 24%; However, in the business license, it only states two shareholders: Zhangyan owns 51% equity, among which, 26% owned by Mike; Tony owns 49%, among which, 25% owned by Mike )2009年11月3日，程岸向张严打款26万元，系程岸以张严名义缴纳的出资，由张严和程晓正式成立了上海俊达进出口有限公司（以下简称俊达公司）。稍后，三人签订《股份协议书》，“程岸为外国籍，目前无法与国内自然人成立合资公司”,约定“先期以张严、程晓两人名义成立公司，等条件成熟后，程岸与该公司成立中外合资公司”。至于投资比例，协议也写得很清楚：“程岸51%，张严25%，程晓24%。”
Since the incorporation of Junda company, Zhang Yan has been communicating with Mike and Tony via e-mail, such as reporting Junda company's operations, financials and dividend plans.On 6 August 2018, Junda Company issued a <Certificate of Contribution> to Mike, which stated that Mike had paid a capital contribution of 510,000RMB to the company on 3 November 2009.自公司成立以来，张严一直通过邮箱与程岸、程晓联系，以电子邮件的方式汇报俊达公司的运营情况、办公室账目及分红方案等。2018年8月6日，俊达公司向程岸出具一份《出资证明书》，载明：程岸于2009年11月3日向公司缴纳出资51万元。
In 2019, Mike wanted Zhang Yan to transfer his 26% stake to Tony. However, Zhang Yan refused, and claimed that he is the actual owner of 51% of the company, he never held any stake on behalf of Mike. Helplessly, Cheng had to file a lawsuit against Junda Company and Zhang Yan, with the purpose of confirming that the equity held by Zhang Yan, 26% of the company's shares are owned by Mike.2019年，程岸提出希望张严将其代持的26%股权转让给程晓，但张严一直拒绝，并自称从未代持过股权，自己就是公司51%股权的实际所有人。无奈之下，程岸只好将俊达公司和张严告上法庭，要求确认张严所持有的公司股权中有26%系程岸所有。
The court of first instance held that the two sides had a series of clear agreements which confirmed that Mike actually held 51% of the shares of Junda, of which 26% was held by Zhang Yan, and 25% by Tony. At the same time, Mike had submitted payment records and mail exchanges to prove that he had discharged his contribution obligation to Junda company, and in fact participated in the operation and management of the company, fulfilling his rights and obligations as a major shareholder. Although Junda company and Zhang Yan denied the aforementioned fact, they failed to provide sufficient evidence to prove their denial. Therefore, the court of first instance ordered Junda company to change the ownership of the 26% equity share of Junda company to Mike instead of Zhang Yan's. Junda refused to accept the judgement and appealed to the Appellate Court.一审法院认为，双方有上述一系列明确的协议相互印证程岸实际享有俊达公司51%股权，其中26%的股权由张严代持，25%的股权由程晓代持。同时，程岸已提交打款记录、邮件往来记录来举证证明其对俊达公司履行了出资义务，且在事实上参与了公司经营管理，履行了其作为大股东的权利和义务，俊达公司及张严虽然否认，但并未提供充分证据予以证明。故一审判令俊达公司将张严名下的俊达公司26%的股权变更登记到程岸名下。俊达公司不服，向上海一中院提起上诉。Junda company appealed and claimed that: what the Equity Share Agreement exactly meant is: Junda company shall set up another joint venture with Mike in the future, thus the first instance court misunderstood the meaning of this agreement. Furthermore, the e-mail address provided by Mike didn’t belong to Zhang Yan, the judgement made based on Mike’s unilateral statement is biased.俊达公司上诉称，一审法院错误认定《股份协议书》的意思表示，该《股份协议书》意指未来俊达公司与程岸之间再成立一家合资企业；程岸提及的涉案电子邮箱也并非张严所有，一审法院仅以程岸单方主张作出认定有失偏颇。
The Appellate Court believed that the content of the <Equity Share Agreement> is very clear and the following conclusions could be drawn:
a) First, all three parties confirmed that Mike is a shareholder of Junda company;
b) Second, Mike owns 51% of Junda' shares.In addition, according to the <Certificate of Contribution>, Mike is the shareholder of Junda company, and he had paid 510,000RMB as capital contributions on 3 November 2009.二审法院认为，涉案《股份协议书》文义内容清晰并无歧义，可得出以下结论：一是三人当时均确认程岸系俊达公司股东；二是程岸拥有俊达公司51%的股权。此外，根据《出资证明书》的记载，程岸系俊达公司的股东，已于2009年11月3日缴纳了51万元的出资款。
Regarding the e-mail address, the Appellate Court found that all the user names of these mailboxes contain "zhangyan", which is in consistent with Zhang Yan's name in the phonetic alphabet and all signatures of the sender are "Zhang Yan" (in Chinese), which are exactly the same characters of Zhang Yan's name. Meanwhile, all the content of the correspondence involved the day-to-day operations of Junda company, such as monthly accounting details, financial statements, factory site selection, foreign exchange settlement schedules, etc. It is difficult to grasp such a detailed internal situation, unless the user is responsible for Junda's daily operations. As a matter of fact, Junda's legal representative is Zhang Yan.Taken together with all the above mentioned facts present, the court of first instance correctly concluded that these mailboxes were actually used by Zhang Yan between 2009 and 2018.Thus, the Appellate Court rejected the appeal and upheld the original judgment.关于电子邮箱的归属，二审法院认为，可从形式和内容两方面进行判断，涉案邮箱的用户名均含有“zhangyan”，与张严的拼音字母一致，且这些邮箱中的发件署名亦为“张严”，与张严同名。同时，涉案往来邮件的内容涉及俊达公司的日常运营，如月度账目明细、财务报表、厂址选择、结汇时间表等，若非负责俊达公司的日常运营，则难以掌握如此翔实细致的内部情况。而俊达公司的法定代表人恰恰就是张严。综合以上因素，一审法院认为上述邮箱在2009年至2018年期间由张严实际使用，并无不当。二审法院遂驳回上诉，维持原判。
Comments:The Foreign Investment Law, which came into effect on 1 of January 2020, removes restrictions on Chinese individuals in setting up sino-foreign joint ventures with their foreign partners. Foreign businessmen such as Mike and Chinese national Zhang Yan, are now legally able to set up a joint venture after the new law came into effect.
In view of China’s current system of foreign investment which stresses national treatment plus negative list, the court of first instance also consulted with relevant administrative authorities during the proceedings, and the reply they received was "... besides, Junda's business scope is outside of the scope of special management measures for foreign investment access (negative list),...... there aren’t any legal obstacles in adding Mike as a shareholder of Junda or to initiate procedures to change Junda’s company to a foreign-invested enterprise". Therefore, it doesn’t need to go through any special approval procedures to add Mike as a shareholder of Junda company, as there are no legal or policy obstacles any more.案件评注：2020年1月1日生效的《外商投资法》取消了原先中外合资经营企业中对中方自然人合资的限制，像本案的外籍商人程岸和中国人张严在新法生效后已然可以共同创办合资企业。鉴于我国对外商投资实行准入前国民待遇加负面清单管理制度，一审法院也在诉讼期间致函有关行政管理机关，得到了“……俊达公司所从事领域亦不属于外商投资准入特别管理措施（负面清单）内范围，……我委办理程岸变更为俊达公司股东，并将俊达公司变更为外商投资企业的备案手续不存在法律障碍”的复函。因此，本案程岸要求变更为俊达公司股东，不需要履行特别的审批手续，不存在法律和政策上的障碍。
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