Nature Determination and Validity Boundary of Dormant Equity Investment Contracts

Dormant equity investment consists of three main parties, namely, the actual investor, the nominal shareholder and the target company, and two serial contract relationships. Since the actual investor does not hold the equity before signing the contract and has no legal relationship with the target company, the signing of the dormant equity investment contract between the actual investor and the nominal shareholder can only produce creditor’s rights, and the company law only recognizes the status and equity of the nominal shareholder. When judging the validity of the dormant equity investment contract that evades mandatory provisions of law, we should stick to the basic position of “general condition invalid, exception valid”. The invalidity or rescission of the dormant equity investment contract only leads to the termination of the rights and obligations between the actual investor and the nominal shareholder, but does not affect the legal relationship between the nominal shareholder and the target company. The nominal shareholder continues to enjoy the equity, but its exclusive equity rights constitute unjust enrichment, so the unjust enrichment should be returned, and the equity appreciation should be fairly distributed.