区分“明股实债”和“股权投资”的仲裁思路
The Arbitration Approach for Distinguishing Between “Debt Investment in The Name of Equity Investment” and “Equity Investment
关键词
股份回购 明股实债
Share Repurchase, Debt Investment in The Name of Equity Investment
当事人约定股份回购是否构成“明股实债”须考察缔约背景、合同条款约定、实际履约情况等客观因素，探究当事人的真实意思进行实质判断。Whether the share repurchase agreed upon by the parties constitutes "debt investment in the name of equity investment" should be determined by examining objective factors such as the contractual background, terms stipulated in the contract, and the actual performance, and exploring the true intentions of the parties concerned to make a substantive judgment.Significance
在仲裁实践中对“明股实债”和“股权投资”二者进行区分，运用穿透式的审判思维审视实质交易结构，揭示交易的本质，明确“明股实债”的判断标准，维护当事人在股权交易中的切实利益。In arbitration practice, it is necessary to distinguish between "debt investment in the name of equity investment" and "equity investment", applying a penetrating judicial mindset to examine the substantive transaction structure, revealing the essence of the transaction, and clarifying the criteria for determining "debt investment in the name of equity investment", so as to safeguard the legitimate interests of the parties in equity transactions.基本案情
Basic Facts
20XX年，A基金公司（投资人，案件申请人）与张某（B公司的创业股东，案件被申请人）等股东签署《某轮增资协议》，约定A基金公司买入并持有B公司500万股人民币普通股（以下简称“目标股份”），占B公司股本总额的13%。后，A基金公司与张某签订《股份转让协议》，协议约定张某或其指定账户分两期向A基金公司回购其持有的目标股份，明确了两期的回购时间和价格。双方在《某轮增资协议》中约定，若B公司发生下列任一事件（回购权的生效条件），则A基金公司有权要求张某行使回购权：（1）公司未能在第二次交割后5年内完成合格上市，投资人也未通过其他方式退出其在公司的投资；（2）创业股东或公司在重大方面违反了本合同项下的陈述、保证和承诺，并对投资人造成重大不利影响；（3）任何第三方向公司或其关联人士提起有关侵犯知识产权的诉讼，并对公司造成重大不利影响。……如投资人根据上述规定要求退出投资，则退出股权的规定价格=该投资人的投资资金或股权对价×（1+10%×n）＋所有应分未分的属于该投资人的红利）。n为一个分数，其分子为第二次交割日至投资人收到退出股权价款之日的天数，分母为365。《某轮增资协议》还约定，B公司被解散或依法终止经营时，公司清偿对外债务后的剩余财产优先向A基金公司支付相当于其投资资金1.5倍的款项……最后再按全体股东的持股比例进行分配。此外，《某轮增资协议》还约定了投资人对新增注册资本的优先认购权，投资人有权随时将其持有的股权转让给非公司直接竞争对手及其直接或间接控股的企业，以及A基金公司向B公司委派董事、参与经营管理。A基金公司根据《某轮增资协议》支付了投资款。几年后，B公司在新三板挂牌。《股份转让协议》签订后，截至A基金公司提起仲裁前，张某未按约完成《股份转让协议》项下两期的股份回购。In 20XX, Fund Company A (the investor and claimant in the case) and Mr. Zhang (the founding shareholder of Company B and the respondent in the case) and other shareholders signed the "Capital Increase Agreement for X Round", stipulating that the Fund Company A would purchase and hold 5 million RMB ordinary shares of Company B (hereinafter referred to as "target shares"), accounting for 13% of the total share capital of Company B. Afterwards, Fund Company A and Mr. Zhang entered into a "Share Transfer Agreement", which stipulated that Mr. Zhang or his designated account would repurchase the target shares held by Fund Company A in two instalments, clearly specifying the repurchase time and price for each instalment. In the "Capital Increase Agreement for X Round", the parties agreed that if any of the following events occurred (the conditions for the repurchase right to take effect), Fund Company A would have the right to require Mr. Zhang to exercise the repurchase right: (1) The company failed to complete a qualified public listing within 5 years after the second closing, and the investor also failed to exit its investment in the company through other means; (2) The founding shareholder or the company materially breached the representations, warranties and undertakings under this agreement, causing material adverse effects on the investor; (3) Any third party initiated litigation against the company or its affiliates for infringement of intellectual property rights, causing material adverse effects on the company. ...If the investor requires to exit the investment according to the above provisions, the agreed exit price for the equity = the investor's investment amount or equity consideration × (1+10%×n) + all undistributed dividends attributable to the investor). N is a fraction, with the numerator being the number of days from the second closing date to the date the investor receives the exit equity price, and the denominator being 365. The "Capital Increase Agreement for X Round" also stipulated that if Company B was dissolved or terminated according to law, after repaying external debts, the remaining assets of the company shall be paid to Fund Company A in priority with an amount equivalent to 1.5 times its investment amount... and then distributed according to the shareholding ratio of all shareholders. In addition, the "Capital Increase Agreement for X Round" also stipulated the investor's preemptive right to subscribe for the newly increased registered capital, the investor's right to transfer its shareholding to non-direct competitors of the company and enterprises directly or indirectly controlled by them at any time, as well as Fund Company A's right to appoint directors to Company B and participate in operation and management. Fund Company A paid the investment amount in accordance with the "Capital Increase Agreement for X Round". Years later, Company B was listed on the National Equities Exchange and Quotations (NEEQ).After the "Share Transfer Agreement" was signed, until Fund Company A initiated arbitration, Mr. Zhang had not completed the repurchase of shares in two instalments as stipulated in the "Share Transfer Agreement".A基金公司向上海仲裁委员会提出仲裁申请，请求仲裁庭裁决张某向其支付回购价款、违约金、律师费、财产保全费、仲裁费。Fund Company A filed an arbitration application with the Shanghai Arbitration Commission, requesting the arbitral tribunal to rule that Mr. Zhang pay the repurchase price, liquidated damages, attorneys' fees, property preservation fees, and arbitration fees.张某主张，A基金公司系形式上向B公司投资，其与目标股份之间实际为“明股实债”，A基金公司要求张某收购股份构成事实履行不能。具体理由如下：其一，按照《某轮增资协议》的约定，回购价格为投资人的投资本金+年利率10%的“利息”，可看出投资人系形式上通过股权方式进行投资，实则通过交易结构的设计使得投资主要依靠债权回款。其二，《某轮增资协议》关于B公司被解散或依法终止经营时公司清偿对外债务后的剩余财产分配的约定明显违背企业利润根据合营各方注册资本的比例进行分配的规定。
其三，虽然《某轮增资协议》约定申请人向B公司委派董事、参与经营管理，但实际上A基金公司没有实际参与B公司经营，A基金公司也毫不关心B公司的生存经营。
Mr. Zhang claimed that Fund Company A formally invested in Company B, but the relationship between Fund Company A and the target shares was actually "debt investment in the name of equity investment", and Fund Company A's request for Mr. Zhang to repurchase the shares constituted a factual inability to perform. The specific reasons were as follows:
First, according to the provisions of the "Capital Increase Agreement for X Round", the repurchase price is the investment principal plus an "interest" of 10% annual interest rate, which shows that the investor formally invested through equity but essentially relied on the debt structure to recoup the investment through the designed transaction structure.Second, the provisions in the "Capital Increase Agreement for X Round" regarding the distribution of the company's remaining assets after repaying external debts in the event of dissolution or termination of Company B clearly violated the stipulation that corporate profits should be distributed in proportion to the registered capital contributed by each joint venturer.Third, although the "Capital Increase Agreement for X Round" stipulated that the claimant could appoint directors to Company B and participate in operation and management, in reality, Fund Company A did not actually participate in the operation of Company B, and Fund Company A was also indifferent to the survival and operation of Company B.Issue of Dispute
双方之间法律关系是否构成“明股实债”，进而影响《股份转让协议》之效力。
Whether the legal relationship between the two parties constituted "debt investment in the name of equity investment", which should in turn affect the validity of the "Share Transfer Agreement".
仲裁庭意见
Opinion of the Arbitral Tribunal
在本案中，申请人提请的仲裁依据是《股份转让协议》，未涉及其他投融资条款，但因该协议以《某轮增资协议》及关联协议为基础，故《某轮增资协议》与《股份转让协议》虽系各自独立，仲裁庭仍将《某轮增资协议》纳入考量范围。从《某轮增资协议》条款约定看，其“关于股东权利和义务的特别约定”的章节是投融资各方为解决交易各方对目标公司未来发展的不确定性、信息不对称以及代理成本而设计的，包含了创业股东向投资人1元转让适当数量股份、投资人附条件要求创业股东等回购股份等，未来对目标公司进行估值调整的条款。其中包括“回购权”在内的估值调整条款明显不同于借贷法律关系，具体如下：（1）协议约定投资人要求创业股东等回购股份是附条件的，且所附条件与目标公司的经营、履约过程中创始股东等的诚信守法息息相关，不同于借贷法律关系中按照固定期限偿付的条款。（2）协议约定投资人有权随时通过对外转让股份的方式收回投资，不同于借贷法律关系中将“回购”作为唯一的退出方式。（3）协议约定目标公司向第三人增发新股时，投资人享有认购新增注册资本的优先权，说明投资人存在视情增持股份，维持与原持股比例相当股东地位的意愿，这在借贷法律关系中几无出现必要。从《某轮增资协议》的实际履约情况看，投资人实际取得股东地位，未见定期收取固定收益，且根据目标公司新三板挂牌的事实，可以证实其公司治理结构完善，没有证据显示A基金公司从不参与任何公司经营决策活动，上述情形亦明显有别于借贷法律关系的履行。至于张某认为《某轮增资协议》约定，目标公司被解散或依法终止经营时，投资人的公司剩余财产分配顺序优先与创业股东，系违背企业利润根据合营各方注册资本的比例进行分配规定之抗辩，因公司清算前，股东的剩余财产分配请求权仅为抽象期待权，如公司经清算后没有剩余财产，则作为具体债权的剩余财产分配请求权将归零，即使分配顺位优先，A基金公司也将无法收回投资，这显然与保底条款不同，没有违反法律、法规禁止性规定。综上，仲裁庭认为，无论是A基金公司作为仲裁依据的《股份转让协议》，还是作为《股份转让协议》基础的《某轮增资协议》均合法有效，是签约各方真实意思表示，不构成“明股实债”，张某对此的抗辩理由，不能成立。 In this case, the arbitration basis invoked by the claimant is the "Share Transfer Agreement", which does not involve other financing terms. However, since this agreement is based on the "Capital Increase Agreement for X Round" and related agreements, although the "Capital Increase Agreement for X Round" and the "Share Transfer Agreement" are independent from each other, the arbitral tribunal will still take the "Capital Increase Agreement for X Round" into consideration.From the provisions of the "Capital Increase Agreement for X Round", the chapter on "Special Provisions on Shareholders' Rights and Obligations" was designed by the parties involved in the financing to address the uncertainties regarding the future development of the target company, information asymmetry, and agency costs. It includes provisions such as the founding shareholder transferring an appropriate number of shares to the investor for 1 yuan, the investor's conditional right to require the founding shareholder to repurchase shares, and clauses for future valuation adjustments of the target company. The valuation adjustment clauses, including the "repurchase right", are clearly different from a lending legal relationship, specifically:(1) The agreement stipulates that the investor's request for the founding shareholder to repurchase shares is conditional, and the conditions are closely related to the target company's operations and the integrity and compliance of the founding shareholder and others during the performance process, which differs from the fixed repayment term in a lending legal relationship.(2) The agreement stipulates that the investor has the right to recover the investment at any time by transferring shares externally, which differs from the "repurchase" as the only exit method in a lending legal relationship.(3) The agreement stipulates that when the target company issues new shares to third parties, the investor enjoys the preemptive right to subscribe for the newly increased registered capital, indicating the investor's willingness to increase its shareholding as appropriate to maintain a shareholding ratio equivalent to its original status, which is rarely necessary in a lending legal relationship.From the actual performance of the "Capital Increase Agreement for X Round", the investor has actually obtained shareholder status and has not been seen to receive fixed returns periodically. Furthermore, according to the fact that the target company was listed on the NEEQ, it can be confirmed that its corporate governance structure is well-established, and there is no evidence showing that Fund Company A never participated in any decision-making activities related to the company's operations, which is also clearly different from the performance of a lending legal relationship.As for Mr. Zhang's argument that the provision in the "Capital Increase Agreement for X Round" that the distribution order of the target company's remaining assets to the investor is prioritized over the founding shareholder in the event of dissolution or termination of the company violates the stipulation that corporate profits should be distributed in proportion to the registered capital contributed by each joint venturer, before the company's liquidation, the shareholders' claim for distribution of remaining assets is only an abstract expectation right. If the company has no remaining assets after liquidation, the specific creditor's right to claim distribution of remaining assets will be reduced to zero. Even if the distribution order is prioritized, Fund Company A may still be unable to recover its investment, which is clearly different from a guaranteed minimum return provision and does not violate prohibitive laws and regulations.In summary, the arbitral tribunal believed that whether it is the "Share Transfer Agreement" invoked by Fund Company A as the arbitration basis or the "Capital Increase Agreement for X Round" as the basis for the "Share Transfer Agreement", both are legal and valid, reflecting the true intent of the contracting parties, and do not constitute "debt investment in the name of equity investment". Mr. Zhang's defense arguments on this matter cannot be sustained.
Award
对于A基金公司仲裁请求所主张的回购款以及违约金中的合理部分，仲裁庭予以支持。关于律师费在《股份转让协议》中有明确约定，由张某负担。关于仲裁费、财产保全费是争议解决必要支出，由张某全额承担。
With respect to the reasonable portion of the repurchase payment and liquidated damages claimed by Fund Company A in its arbitration request, the arbitral tribunal supported it. Regarding the attorney's fees, there is an explicit provision in the "Share Transfer Agreement" that they shall be borne by Mr. Zhang. As for the arbitration fees and property preservation fees, they are necessary expenses for resolving the dispute and shall be borne by Mr. Zhang in full.
Case Analysis
本案是涉股权回购交易纠纷，“明股实债”问题是此类纠纷的重点和难点。“明股实债”，即“名为股权投资、实为出借资金”，并非法律概念，内涵外延亦不十分精确。“明股实债”与股权投资在交易方式上有许多相似性，前者核心在“债”，后者核心在“股”，正确区分二者对合同性质的认定、投资回报的处理以及合同效力的判定等都具有重要意义。例如，依据《民法典》第一百五十三条第二款等，以“明股实债”类投资行为违反规章、违背公序良俗为由，结合《九民纪要》第31条之规定，被认定为“明股实债”的投资合同存在因违反公序良俗被认定为合同无效的可能；又如，《最高人民法院关于审理民间借贷案件适用法律若干问题的规定》 施行之后，如果投资行为被认定为“明股实债”，合同约定的投资回报则属于民间借贷的利息，其司法保护上限将受到4倍LPR的限制，显然投资人的预期收益将被压缩。因而，如何正确判断“明股实债”具有重要的实践意义。实践中对“明股实债”的认定存在巨大争议，但尚无法律或司法解释对此予以统一规制，最高人民法院民二庭第5次法官会议纪要对认定“明股实债”法律关系是“股”还是“债”给出了判断标准：“明股实债并无统一的交易模式，实践中，应根据当事人的投资目的、实际权利义务关系等因素综合认定其性质。投资人目的在于取得目标公司股权，且享有参与公司的经营管理权利的，应认定为股权投资。反之，投资人目的并非取得目标公司股权，而仅是为了获取固定收益，且不参与公司经营管理权利的，应认定为债权投资，投资人是目标公司或有回购义务的股东的债权人”。司法实践中，在判定到底是“股权”还是“债权”时，法院也从对利息约定、转让股权的份额确定、拟转让股权的交付方式、股权转让的价金、投资人是否参与经营管理、投资人是否承担相应风险、投资人退出约定等方面综合进行判断。本案中，仲裁庭在全面、客观审查证据的基础上，就真实股权交易异于“明股实债”交易的特征进行分析和论述，从股权回购条件的约定、投资人退出机制、投资人持股意愿、投资人是否收取固定收益等方面，论证本案交易不符合“明股实债”的法律特征，进而认定本案系股权投资行为。裁判逻辑严谨、有理有据、适用法律正确。本案被申请人以协议约定回购价格为“投资本金+年利率10%的‘利息’”为由主张案涉交易实为借贷，但从在案证据和事实看，投资人并未定期收取固定收益、并非以固定期限作为投资人退出的理由，与借贷关系中定期收取利息存在明显不同，案涉仲裁裁决对此精准把握。除此之外，本案裁决也体现了投资人“主观意愿”对合同性质认定的重要性，即在相关协议中约定目标公司增发新股时，投资人享有认购新增注册资本的优先权，表明投资人并非简单出借款项，而是具有长期持有目标公司股权、维持其股东地位的意愿，与借贷关系存在明显不同。不同于债权人，股东作为公司的所有者必然要与公司“荣辱与共”，公司的强盛兴衰直接影响股东利益，这也在一定程度上要求股东积极参与公司的日常经营活动，而不能“躺在自己的权利上睡大觉”。因而，在辨析“明股实债”与股权投资交易时，投资人是否参与目标公司的经营、是否承担经营风险也是重要考量因素。本案中，相关增资协议约定了投资人向目标公司委派董事、参与经营管理。此时举证责任转移到被申请人，被申请人未提供充分证据证明投资人不参与经营管理的情况下，须承担举证不利的法律后果。本类涉“明股实债”案件涉及定性和法律后果处置两个难题，本案裁决正确认定案涉交易为股权投资，不仅解决了交易定性问题，而且较为妥善地解决了“股权”处置问题，且与当前民法典及担保制度解释的规定精神相契合，对类似案件的办理起到了很好的示范作用。本案裁决结构清晰，重点突出，将案件事实、法理分析、法律适用有机结合，彰显了裁判文书的公正性、说服力、公信力。This case involves a dispute over equity repurchase transaction, and the issue of "debt investment in the name of equity investment" is the key and difficulty in such disputes. "Debt investment in the name of equity investment", meaning "nominally equity investment but essentially loan lending", is not a legal concept, and its connotation and extension are not very precise. "Debt investment in the name of equity investment" and equity investment have many similarities in transaction methods. The former is centered on "debt", while the latter is centered on "equity". Correctly distinguishing between the two is important for determining the nature of the contract, handling investment returns, and judging the validity of the contract. For example, according to Article 153, Paragraph 2 of the Civil Code and other provisions, combined with Article 31 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of the Civil Code of the People's Republic of China, an investment contract that is deemed to be "debt investment in the name of equity investment" may be deemed invalid for violating public order and good morals; furthermore, after the implementation of the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Private Lending Cases, if an investment act is deemed to be "debt investment in the name of equity investment", the investment return stipulated in the contract will be considered interest in private lending, and its judicial protection ceiling will be subject to the limit of four times the LPR, which will obviously compress the investor's expected returns. Therefore, correctly determining "debt investment in the name of equity investment" has significant practical implications.In practice, there is huge controversy over the identification of "debt investment in the name of equity investment", but there is no law or judicial interpretation to provide unified regulation. The Summary of the 5th Judges' Meeting of the Second Civil Division of the Supreme People's Court provides criteria for determining whether the legal relationship in "debt investment in the name of equity investment" is "equity" or "debt": "There is no uniform transaction model for 'debt investment in the name of equity investment'. In practice, its nature should be comprehensively determined based on factors such as the investment purpose of the parties and the actual rights and obligations relationship. If the investor's purpose is to obtain equity in the target company and enjoy the right to participate in the company's operation and management, it should be identified as an equity investment. On the contrary, if the investor's purpose is not to obtain equity in the target company, but merely to obtain fixed returns and does not participate in the company's operation and management rights, it should be identified as a debt investment, and the investor is a creditor of the target company or a shareholder with a repurchase obligation." In judicial practice, when determining whether it is "equity" or "debt", courts also make comprehensive judgments based on factors such as interest provisions, the proportion of equity to be transferred, the method of delivering the equity to be transferred, the price of the equity transfer, whether the investor participates in operation and management, whether the investor bears corresponding risks, and the investor's exit provisions.In this case, based on a comprehensive and objective review of the evidence, the arbitral tribunal analyzed and elaborated on the characteristics that distinguish a genuine equity transaction from a "debt investment in the name of equity investment" transaction, arguing from the aspects of stipulations on equity repurchase conditions, investor exit mechanisms, investor's willingness to hold shares, whether the investor receives fixed returns, etc., that the transaction in this case did not conform to the legal characteristics of "debt investment in the name of equity investment", and thus determined that this case is an equity investment transaction. The judgment is rigorous and well-grounded, and the application of law is correct. In this case, the respondent argued that the transaction was a lending transaction on the grounds that the repurchase price stipulated in the agreement was "investment principal plus 'interest' of 10% annual interest rate". However, based on the evidence and facts in the case, the investor did not receive fixed returns periodically, and the fixed term was not the reason for the investor's exit, which is significantly different from periodically receiving interest in a lending relationship. The arbitral award in this case accurately matched this point. In addition, this award also reflects the importance of the investor's "subjective intent" in determining the nature of the contract. Specifically, the relevant agreement stipulates that when the target company issues new shares, the investor has the preemptive right to subscribe for the newly increased registered capital, indicating that the investor is not simply lending funds but has the willingness to hold equity in the target company for the long term and maintain its shareholder status, which is significantly different from a lending relationship.Unlike a creditor, a shareholder, as the owner of the company, must inevitably share the company's honor and disgrace, and the company's prosperity or decline directly affects the shareholder's interests. To a certain extent, this also requires the shareholder to actively participate in the company's daily operations. Therefore, in distinguishing between "debt investment in the name of equity investment" and equity investment transactions, whether the investor participates in the operation of the target company and bears operational risks is also an important consideration. In this case, the relevant financing agreement stipulated that the investor could appoint directors to the target company and participate in operation and management. At this point, the burden of proof has shifted to the respondent. Since the respondent did not provide sufficient evidence that the investor did not participate in operation and management, they must bear the adverse legal consequences of failure to provide evidence.Cases involving "debt investment in the name of equity investment" involve two difficulties: defining the nature of the transaction and handling the legal consequences. This award not only correctly determined the transaction as an equity investment, resolving the issue of defining the transaction, but also relatively properly resolved the issue of disposing of the "equity", which is in line with the spirit of the Civil Code and the Interpretation of the Supreme People's Court of the Application of the Relevant Guarantee System of the Civil Code of the People's Republic of China, setting a good example for handling similar cases. The structure of this award is clear, with highlights, organically combining the case facts, legal analysis, and application of law, demonstrating the fairness, persuasiveness, and credibility of the judgment document.案例提供人：上海仲裁委员会一般民商事部副法律顾问陈超杰
