The shareholder’s right has been regarded as a special right, which is substantially different from creditor’s right, in China. However, with the development of business reality, the boundaries between these two rights have been blurred already. Although the structure of shareholder’s right has a probable nature, compared to a more stable structure of credit, there are lots of overlaps between these two structures. Thus, an additional standard, whether investor is registered as shareholder, is required to completely distinguish these two rights.
the essence of shareholder’s right, the structure of right, contractual nature
To contractarian theory, corporation is a nexus of contracts, explicit or implicit, distributing rights and obligations between different corporate participants, who impute various kinds of resources into the corporation. Those participants could be divided into several groups, such as employees, creditors, shareholders, managers and communities. However, why are their rights different from each other? One possible explanation given by economics is that shareholder is the owner of residue claim of corporation. With this residue claim comes the doctrine that the voting power should only be granted to shareholders. Nevertheless, rights of creditors could not be wholly distinguished from shareholders’ just because of residue claim. Creditors would also be residue claimers in some circumstances. It is widely accepted in Anglo-American case law that when the corporation is in an “insolvency context”, creditors, rather than shareholders, become the residue claimers and directors have regard to their interests if they want to discharge their fiduciary duties.The fact, residue claim is not fixed in the group of shareholders, shows that this explanation could not be used to distinguish shareholders’ right from creditors’. Although contractarian theory is extremely useful and insightful, it fails to provide a solid foundation to identify the nature of different contracts. To traditional corporate scholars, shareholder’s right is definitely different from creditor’s right. The most powerful argument is that unlike creditors, shareholders have the right to vote in corporate meetings, making their right not a pure monetary claim.However, shareholders holding preferred shares don’t have voting right; in order to prevent the corporation engaging in too risky activities, creditors could also get the right to vote from the contract they sign with the corporation. This business reality has already pushed scholars to rethink the essence of shareholder’s right. In this regard, although contractarian and traditional corporate theories are powerful to some extent, they fail to give an all-embracing paradigm of the essence of shareholder’s right. In sense of old paradigms’ failure, this article will give a new paradigm to response to all the above questions. The following paper could be outlined as such: part II describes the existing paradigm in China; part III points out the business reality shaking its foundation; part IV reviews the theories for the essence of shareholder’s right in the U.S.; part V provides a new paradigm of the essence of shareholder’s right.
II. The Existing Paradigm In Chinese Corporate Law
A. The Theoretical Level
Defining the essence of shareholder’s right has always been an indispensible part of Chinese corporate textbooks. In regard of the essence of shareholder’s right, those textbooks would usually talk about it in two separate parts. Firstly, the textbooks review all the theories concerning the essence of shareholder’s right before the first version of Chinese Corporate Law was officially enacted. Although there was a fierce academic debate over the essence of shareholder’s right, a widely accepted theory or paradigm has been reached by the academic cycle. This theory could be summarized as such that shareholder’s right is totally different from ownership, credit, associate’s right and a pure status as a shareholder. When it comes to the differences between shareholder’s right and credit, those textbooks emphasis that unlike credit, which is a pure right to claim, shareholder’s right gives its holder a capacity to control the corporation and represents a property-ownership relationship. Secondly, those textbooks describe the differences in more details in a section, usually named corporate debenture and stock. Generally speaking, Chinese corporate theories believe that there are at least following distinctions between these two investment tools: 1. The risks involved. For creditors, they are promised to receive the principal and interest (if any) when the debt is due. Contrary to that, the economic return of shareholder could not be set ex ante. In addition, shareholder is not able to withdraw his capital unless the corporation is legally dissolved, making their investment perpetual. For this reason, high-level risks are involved when investor decides to be a shareholder. 2. Creditors could not share the control of the corporation, especially through the mechanism like shareholders’ meetings. 3. Unless there is any surplus, corporation should not pay any dividend to its shareholder. However, this principal could not extend to creditors. 4. When the corporation is dissolved, shareholder would receive nothing until creditor’s claim is satisfied.
B. The Practical Level
It seems that Chinese corporate theory has provided a clear-cut line to distinguish shareholder’s right and credit. However, are all of them applied into practice?Chinese Professor Deng Feng has said, those commonly accepted descriptive distinctions, including cost of financing, types of issuers, rate of economic return, and risks involved, could hardly be used to make judicial judgments. As a result, only a proportion of the theory has been applied in the practice.
1. The judicial cases concerning “debt under the name of equity”. Firstly, in Haifu Ltd. v. Shiheng Ltd., which is the first judicial case regarding valuation adjustment agreement in China, the court heldthat in the agreement Shiheng and another corporation called Haitong promised to Haifu that even if Shiheng could not make any earning in the forthcoming years, they would still pay a certain amount to Haifu as a consideration for its investment. So Haifu’s investment should be identified as a debt under the name of equity. According to Chinese law, such agreement should be nullified. Secondly, in 2005, in Hainan Commercial Trade Ltd. v. Hainan Guotai Ltd. case, the Hainan high court held that this investment agreement is a debt under the name of equity. The reason behind this judgment is that in this agreement Guotai promised Commercial Trade would receive aneconomic return, not less than 30% of the principal annually, or the former needs to pay approximately $ 20000 fee to the latter monthly. Thus, it’s safe to draw the conclusion that even if the investor is registered as a shareholder in the charter or any other legal documents, as long as there is any provision in the investment contract providing that the shareholder’s economic return is promised, the investment would be identified as debt instead of stock. In this sense, the judicial body in China takes the risk standard as the main signal to distinguish shareholder’s right from debt.
2. The attitude of regulatory authorities. In 2009, China Banking Regulatory Commission (hereafter “CBRC”) released a regulatory document regarding trust corporations. In this document, CBRC ruled that any unit trust fund using as equity investment should be regarded as debt if there is any provision making this investment redeemable in the agreement. Although this regulatory document had its unique policy consideration that minimizing risks involved in REITs, this attitude of regulatory and relevant comments, such as the economic return of shareholder’s right should be floating, to some extent presents that Chinese regulatory authorities attributes characteristics, including floating economic return, nonredeemable, to shareholder’s right solely.
C. A Brief Conclusion
Although Chinese corporate academic cycle has provided a clear response or theory to the issue that what are differences between shareholder’s right and creditor’s, most of its contents are just an empirical observation but not a rationally structured theory. The flaws of this theory have attracted many scholars’ attention.In the practical level, neither judicial body nor regulatory authorities accept every aspect of the existing corporate law theory. Instead, under the background that the financial innovation is highly limited nowadays in China (even the preferred stock is still prohibited in Chinese Corporate Law and Chinese Securities Law),both judicial and regulatory bodies take floating economic return and nonredeemable as the standards to identify certain investment as shareholder’s right. Though pragmatically enough, could this theory response to the challenges brought by developing business realities and astonishing financial innovations? Could this finely answer the questions raised by the essence of shareholder’s right? From the following paper, this article would give a negative answer.
III. The Business Reality: The Boundaries Between Shareholder’s right and Credit Have Been Blurred
Article four of Chinese Corporate Law provides that shareholders in corporations have rights such as receiving economic return, participating in major decisions and selecting managers. So, the most typical shareholder’s right could at least be divided into three parts: 1. Right to ask for dividend; 2. Right to ask for asset distribution when the corporation is dissolved; 3. Voting power to decide major corporate issues. However, the typical corporate creditor could only ask the corporation to repay both principal and interest when the debt is due. Nevertheless, in order to meet the complex and various financial needs, and influenced by taxation and regulatory factors, shareholder’s right is becoming increasingly atypical. What’s more, the creditor’s right has got lots of characteristics, which could only be attached to shareholder’s right in the past. In the following paper, this article will show this tendency in details.
A. Atypical Types of Shareholder’s Right
1. Preferred stock.Shareholder, holding preferred stocks, has a fixed rate of economic return, and is in a superior position than common shareholders to receive dividend or asset distribution when the corporation is dissolved. Preferred stock is the most commonly seen atypical type of shareholder’s right. Although the holder of which is still called shareholder, the content of the right has changed in two parts: 1.1 voting right is usually not attached to this kind of shareholders; 1.2 the characteristic, fixed economic rate, has made it very similar or even identical with creditor’s right. Actually, preferred stock is a transitional form between common stock and credit or a mix of both two rights. In this sense, preferred stock is regarded as a debenture rather than stock, or a stock-debenture in accounting. Thus, whether investor has voting right or fixed rate of economic return could not be a basis to distinguish shareholder’s right from credit.
2. Managing stock or stock only with voting right. Other than preferred stock, which is an atypical stock for it has no voting right; there is another atypical stock that only has voting right and no other claims.This kind of stock could be called managing stock for the reason that holders of which don’t have any right to receive dividend or participate in any other asset distributions, but only have voting right to decide corporate issues. Although directors mainly use this kind of stock as an anti-takeover strategy, its use could still be expanded to much broader corporate contexts. In this regard, whether an investor is the residue claimer of the corporation cannot be the essence of shareholder’s right either.
3. Redeemable stock. In Edelman v. Phillips Petroleum Co., the Delaware Chancery Court held, the two-step transaction, which was an important part of the recapitalization plan of Phillips Petroleum Co., was valid. One part of this transaction is to amend the charter of the corporation to make some preferred stock redeemable. Noticeable, in nowadays Delaware General Corporations Law, once certain requirements are satisfied, even common stock could also be designed as redeemable one. If all kinds of stock could be designed as redeemable by charters or issuance contract, how could shareholder’s right be distinguished from credit by the doctrine that unlike creditors, shareholders cannot withdraw their investments when the corporation is still alive?
B. Corporate Credit Having Characteristics Used To Be Attached To Stock Only
1. Credit having voting right. 1.1 As the representative scholar in German academic cycle, Professor Larenz said, voting right is a subunit of participating and managing right, the latter is so closely related to the associate status of a corporation or community that could not be departure.However, in German Corporate Law, there is a mechanism called Total Determination System. In this system, the representatives of employees, who are regarded as creditors in corporate law theory, have the voting right to decide major corporate issues, including selecting directors, through supervisor’s meetings. In addition, this voting right is mandatory. So the corporation and its employees are prohibited from contracting around the legal rules by charter or agreement.  Although professor Henry Hansmann highly doubted the efficiency of this system and the real power of this kind of voting right, Total determination system still set an example that creditors could also have voting right. If the flaws of shareholder’s voting right such as free raider problem and collective action problem are taken in consideration, creditor’s voting right under the total determination system is as powerful as shareholder’s. 1.2 What’s more, contractarians argue that because shareholders are the residue owners of corporations, so voting right could only be distributed to the group of shareholders. Distributing voting right like that could improve the efficiency of corporations and ultimately promote social welfare.However, the fact that residue claim is not fixed in shareholders has deeply shaken the basis of such explanation. Firstly, when the corporation is in the insolvency context, creditors, rather than shareholders, become the residue owners. Secondly, in order to prevent corporations from engaging in too risky business activities, creditors would usually ask for a veto power in loan agreements or even corporate charters. In one word, for the reason that creditors would also be residue owners in some special circumstances, creditors could also have voting right through statutes, such as corporate law and bankruptcy law, or contracts.
2. Subordinate debt. Generally speaking, corporate creditors’ claims should be superior to shareholders’ in two respects: First, unless the creditors’ claims are satisfied, shareholders could not receive any dividend; Second, unless the creditors’ claims are satisfied, shareholders could not receive any asset when the corporation is dissolved. However, in the corporate practice in Australia, corporations is permitted to issue debentures on terms that the debt is to be subordinate to other debt but superior to preferred stock.This kind of arrangement enables a corporation to increase quasi-capital financial activities. The merits of this arrangement could be divided into two parts: Firstly, holders of subordinate debt don’t need to comply with the rules about return of share capital. In addition, the interest paid to them is tax deductible. Secondly, the interest rate of this debt would be lower compared to preferred stock. It is worth mentioning that after King v. Tait, Australia has allowed corporation to issue debentures on the term that the debt is subordinate to common stock! Thus, credit could be designed very much similar or even identical with shareholder’s right.
C. Is There Any Difference Between Shareholder’s Right and Credit?
From the above presentation about the various atypical types of shareholder’s right and creditor’s right, we have to concede the fact that in order to meet the complex and innovative financial needs, the boundaries between shareholder’s right and credit have already been blurred. Without the record in the shareholders registers or corporate charters, we cannot distinguish shareholders’ right from credit purely on the assumption that there are some obvious differences between these two rights. Without the special blank called Owner’s Equities in the balancing sheet, the accountants could not make the judgment whether the corporation is insolvent only from the content of different investors’ rights.Nowadays, only the doctrine that shareholder’s right is absolute and credit is relative has not been shaken by the business reality. However, the power of this doctrine is also limited. To some extent, creditor’s right could also be absolute: Firstly, the content of creditor’s right has impact not only on corporation but shareholders as well. Secondly, for the reason that the content of credit would usually be recorded in corporate charters or issuance documents, a certain range of third parties could not claim that they know nothing about the content of credit. Thirdly, after the enactment of Japan’s Electronically Recorded Monetary Claims Act, the assignment of credit has got the identical legal consequence of that of property right, meaning that the assignment of credit could against uncertain third parties.
Some American scholars have pointed out that the modern business organization is a product of bargaining under constraints in essence. The participants (including shareholders, creditors and employees) taking part in the bargaining would adjust contents of their rights from four dimensions, namely risk of loss, control, duration and transferability, according to their own financial needs. Thus if people do not regard control as an indispensible element of shareholder’s right and take other shareholder’s right without control or credit with control into account, the traditional doctrine concerning business organizations and rights hold by their members would be found obviously wrong.Here are some examples. When a creditor wants to provide a 20-year long loan (the duration is very long) to a starting-up corporation (the risk of loss is high), he would probably ask for some kind of control (veto power or voting right) to secure his investment to some extent.If an investor wants to be a shareholder of an Internet corporation (the risk of loss is very high), he would possibly request the corporation to design his investment redeemable, to some extent like a credit. Just in this process of bargaining, the content of shareholder’s right has changed and creditor’s right has also got some characteristics attached to shareholder’s right only in the past, due to the factor of risk, duration and so on. In this sense, the traditional theory for the essence of shareholder’s right in Chinese Corporate Law fails to response to the new business reality. Then, what is the essence of shareholder’s right? How can we distinguish shareholder’s right from credit?
IV. The Theories For The Essence Of Shareholder’s Right In The U.S.
A. The Theory In Securities Law
In 1975, the Supreme Court in the U.S. analyzed the essence of shareholder’s right in United Housing Foundation, Inc. v. Milton Forman. In this case, the Supreme Court held that although the names of investment contracts were not decisive in identifying the nature of them, it didn’t mean that there was on relevance between them. In some circumstances, an accepted name, such as stock, would lead investors to believe that the federal securities regulations could be applied to it. Especially when there are certain characteristics traditionally associated with it. The Supreme Court held further that those essential features traditionally associated with stock include at least the following five parts (noticeably, the Supreme Court pointed out the essence of shareholder’s right by eliminating those should not belong to it): 1. The right to receive dividend contingent upon an apportionment of profit; 2. Negotiable; 3. Can be pledged or hypothecated; 4. Confer voting rights in proportion to the number of shares owned; 5. Appreciate in value.It is worth mentioning that when speaking of the latter four parts, the Supreme Court use the sentence “ Traditionally associated with stock”, leaving enough space for deviations. Thus, only the first part, the right to receive dividend contingent upon an apportionment of profit, was regard as an essential part by the Supreme Court. Could we take this theory in the field of securities law to represent the American theory for the essence of shareholder’s right? The answer is negative. In fact, this so-called Essential Characteristics Test is originated from another case held by the Supreme Court. In Tcherepnin v. Knight, the Supreme Court held that the factor that Illinois law makes the payment of dividends contingent upon an apportionment of profits make the shares “stock” under s 3 (a) (10).Then why did the Supreme Court regard this element as essential? One possible explanation is that this holing was influenced by the so-called Howey test. In SEC v. Howey, the Supreme Court set a rule to determine whether there is an investment contract so that the Securities Law could be applied. This rule provides that there is an investment contract when the capital is invested into a common enterprise for the hope to receive economic return merely from other’s effort. Although in Reves v. Ernst & Young, the Supreme Court held that the Howey test should not be applied to those securities explicitly provided in 1933 Securities Law, courts still regard the right to receive economic return as essential for the reason that the legislature intent of securities law is to protect “investors”. Thus, in this regard, the essence of shareholder’s right is to receive economic return. This paradigm could not cover those stocks without any right to receive dividend or asset. However, those stocks (managing stock) are lawful in the U. S. So, how could this conflict be resolved?
B. The Theory In Delaware Corporate Law
Just like the Supreme Court, the Delaware Supreme court, in Dupont v. Dupont, held that shareholders have several essential rights including the right to receive dividends. However, only one year later, the Delaware Supreme Court changed its standpoint. The court announced that the statute (DGCL) is liberal enough to permit the creation of stock having voting rights only, as well as having property rights only. Nowadays in Delaware, in order to enable corporations to meet economic conditions flexible, there are only few restrictions on the essence of stock that a corporation could design. Consequently, even voting right, which is regarded as the most vital part of shareholder’s right, could be limited or deprived by charters or agreements if there is no violation of statutes or public policy. As a result, the preferred stock is prevailing in Delaware in recent decades. As for the essence of shareholder’s right, the Delaware courts regard the shareholder’s right as a common contractual right. Buying stock of a Delaware corporation is itself a sufficient act to establish a nexus with some kinds of jurisdiction. Though using this theory could resolve the conflict brought about by the theory in securities law, it has its inherent flaw that we could not distinguish different contract rights by this theory.
In this regard, we need a new theory to resolve all the problems that the above two theories could not cover.
V. A New Theory For The Essence Of Shareholder’s Right
Although generally shareholder’s right contains three standard contents including the right to receive dividend, the right to ask for asset distribution when the corporation is dissolved, and the right to vote in shareholders’ meetings. However, we have to concede that the boundaries between the shareholder’s right and credit have been blurred by the varying business reality. In almost developed countries, corporation could not only issue stock with these three rights, but issue stock having voting right only or having property rights only. So all the traditional theories fail. Could we still discover the essence of shareholder’s right and distinguish it from credit? For the former question, the answer is positive. While for the latter, the answer is negative.
Although corporation could issue stock only having voting right or property rights, corporation could never issue stock, which doesn’t have voting right and property rights together. In one word, the nature of shareholder’s right has a probable nature. This probable nature is reflected in the fact that the content of shareholder’s right will vary depend on different occasions and not any part is essential. Contrary to that, the corporate credit has a stable structure. No matter how many other rights are attached to credit, the holder of which should always have the right to ask corporation to repay the principal and/or interest. So we can use a mathematical equation to present this distinction. Although the rates and sequences would be set differently according to the financial conditions, the right to ask repayment is identical with the right to receive dividend/asset in the economic sense. So this article uses X to represent this two rights and uses Y to represent voting right. So S (short for shareholder’s right) =｛X, Y, X+Y｝and C (short for credit) =｛X, X+Y｝. Because X is the inherent content of credit, so Y alone could not be a kind of credit. As for the sequences to receive economic return, whether the interest rate should be fixed and whether voting right should be granted could be freely negotiated by business participants.
Though the structures of shareholder’s right and credit are different, however, this theory could only eliminate the rights cannot belong to shareholder’s right. When a right don’t have X and Y, this right is definitely not a shareholder’s right. For example, Andy imputes $ 100 to a corporation and makes a contract with the corporation that instead of himself, Bill would receive the voting right and Charles has the property rights. Then, the right of Andy is definitely not a shareholder’s right and Andy should not be registered as a shareholder. However, when a right has X or Y or X+Y, we cannot use the structure of right to determine whether it’s a shareholder’s right. The occasion that a right having only Y may not be a shareholder’s right could happen in the following context.The corporation would provide in the charter that when shareholders’ meeting is unable to make a decision, CEO has the right to vote in the meeting. Although CEO’s right has Y, he is not the shareholder. In addition, because S includes C, or C has a strong family resemblance with S, so credit having X or X+Y is identical with shareholder’s right from the perspective of structure of right. We cannot distinguish shareholder’s right from credit in these contexts. Thus, we need another standard that whether the investor is registered as a shareholder in charter or other documents.
From above reasoning, we could draw the conclusion that shareholder’s right has its unique structure. However, this structure could only eliminate those rights that are definitely not shareholder’s right. Thus, because of the overlaps between the structures of shareholder’s right and credit, we need to use an additional standard, whether registered as shareholder, to completely distinguish these two rights.
Finally, there are at least four merits of this new theory. Firstly, once we discover the fact that there is no substantial difference between shareholder’s right and credit. Taking shareholder’s right as a contractual right could be justified in the logical sense. Secondly, regarding shareholder’s right as contractual, rather than property right, is more apt to reality. Thirdly, this new theory would impose lesser restrictions upon business participants’ abilities to confront the differing financial conditions and environments. Finally, this new theory, and its accompanying consequence that shareholder’s right could be regarded as contractual would prevent Chinese courts blindly nullifying those equity investments having characteristics of credit.
 See R. P. Austin, I. M. Ramsay, Ford’s Principles of Corporations Law, Fourteenth Edition, LexisNexis, 2010, pp. 388-392.
 See Jiang Ping, Kong Xiangjun, On Shareholder’s right, 1 China Legal Science 72, 76 (1994).
 For following content see generally Shi Tiantao, Commercial Law, Second Edition, Law Press, 2014, pp.188-189.
 See Deng Feng, The General Corporations Law, Renmin University of China Press, 2009, p. 285.
 For following content see generally Lou Qiuran, On The Validity Of The Valuation Adjustment Agreement, 8 Journal of Civil and Commercial Law 1, 94-95 (2014).
 See Ross, Westerfield and Jordan, Essentials Of Corporate Finance, Sixth Edition, Post & Telecom Press, 2012, pp. 161-162.
 See Edelman v. Phillips Petroleum Co. C. A. No. 7899 (Del. Ch. Feb. 12, 1985).
See Edward P. Welch, Andrew J. Turezyn, Robert S. Saunders, Folk on the Delaware General Corporation Law, 2008 Edition, Aspen Publishers, 2008, p.329.
 See Larenz, The General Theories Of German Civil Law, Law Press, 2013, pp. 288-289.
 See Hueck&Windbichler, German Corporations Law, 21st Edition, Law Press, 2010, pp. 502-515.
 See Henry Hansmann, The Ownership OF Enterprise, China University of Political Science and Law, 2001, p. 95.
 See Easterbrook &Fischel, The Economic Structure Of Corporate Law, Peking University Press, 2005, p. 75.
 For following content see generally R. P. Austin, I. M. Ramsay, Ford’s Principles of Corporations Law, Fourteenth Edition, LexisNexis, 2010, p.1000.
 See Cui congcong, On The Resolution Of The Problem In The Field Of Credit Assignment, 29(1) Tribune of Political Science and Law 1, 162 (2011).
See William A. Klein, The Modern Business Organization: Bargaining Under Constraints, 91 Yale. L.
J. 1521, 1521-1564 (1982).
See UnitedHousingFoundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975).
 See Tcherepninv. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967).
See SEC v. Howey, 328 U.S. 293, 66 S. Ct. 1100, 163 A.L.R. 1043, 90 LEd. 1244(1946).
See Marc I. Steinberg, Understanding Securities Law, Fifth Edition, LexisNexis, 2008, pp.12-36.
See DuPont v. DuPont, 208 A.2d 509, 512 (Del. 1965).
See Lehrman v. Cohen, 222 A.2d 800, 807 (Del. 1966).
See Edward P. Welch
1. R. P. Austin, I. M. Ramsay, Ford’s Principles of Corporations Law, Fourteenth Edition, Butterworths Australia 2010.
2. Shi Tiantao, Commercial Law, Second Edition, Law Press, 2014.
3. Deng Feng, The General Corporations Law, Renmin University of China Press, 2009.
4. Edward P. Welch, Andrew J. Turezyn, Robert S. Saunders, Folk on the Delaware General Corporation Law, 2008 Edition, Aspen Publishers, 2008.
5. Hueck&Windbichler, German Corporations Law, 21st Edition, Law Press, 2010.
6. Henry Hansmann, The Ownership OF Enterprise, China University of Political Science and Law, 2001.
7. Easterbrook &Fischel, The Economic Structure Of Corporate Law, Peking University Press, 2005.
8. William A. Klein, The Modern Business Organization: Bargaining Under Constraints, Yale. L. J. 1982. No.91.