Research On Effect Of Stock-Holding Of Public Companies

From the perspective of securities supervision practice,the phenomenon of stock-holding is not unique to our country,and it exists widely in all countries and regions around the world.At the same time,the act of stock-holding isn’t surely illegal,and the stock-holding in foreign investment is also conducive to protecting national interests.In terms of legal norms,although the law recognizes the dormant investment of closed companies,the stock-holding of public companies involves the stability of the national securities market and the vital interests of the majority of investors,and it is inevitable that public companies may have different regulatory structures.This paper notes that the types of public companies are closely related to the legal effect of stock-holding.Therefore,according to whether a public company is publicly issued or publicly transferred,public companies are divided into listed companies,the NEEQ companies and the fact public companies.Meanwhile,this paper makes a deeply study of the internal legal effect and external effect of stock-holding of the public companies.This paper is divided into six chapters with the following specific content:The first chapter analyzes the basic theory of the effectiveness of the public company stock-holding.At the level of private law,the philosophical thought contained in autonomy of will is individual freedom.Therefore,autonomy of will is the basic principle of civil and commercial subject activities,and investors have the freedom to invest by themselves or entrust others to invest.However,freedom is not absolute,it has many restrictions.Therefore,the actor’s autonomy of will should be subject to necessary restrictions.For the internal legal effect of stock-holding,the autonomy of will of the actor is interfered with by public order and good morals.At the same time,in order to overcome the principled and abstract nature of public order and good morals,it should be classified by type and clarify the applicable relationship between public order and good customs and the mandatory provisions.As for its external effect,it is manifested in the limitation of the autonomy of will by Rechtsschein Theory,and its core is the judgment of relative actor’s reasonable reliance.The second chapter is an empirical analysis of the judicial organs’ intervention in the effectiveness of the public company stock-holding.In listed companies,although there are different understandings on the legal nature of different hypocritical acts,they can still be regarded as valid if the acts of stock-holding satisfy the effective requirements of Article 143 of the Civil Code.However,a judge could also identify it as invalid on the grounds that it violates regulatory rules and damages social and public interests.In contrast,in the NEEQ companies and the fact public companies,judges tend to hold stock-holding valid.In general,when the judge judges the validity of stock-holding,the main problems existing in the legal nature is not clear,the judicial decisions have different understandings of the supervision rules,the relationship between violation of compulsory provisions and violation of public order and good custom is chaotic,the idea of invalid disposal of stock-holding lacks legal basis,ignore the externality of internal legal effect of stock-holding.Chapter three discusses the internal legal effect of stock-holding of public companies.On the interpretation path,although it is admitted that stock-holding violates the supervision rules,it can still be regarded as valid because it is not illegal and does not harm the public interests.At the same time,its legal effect can be in accordance with the agreement between the actors.However,based on the need of securities regulation,the supervision rules can also interfere with the private legal force,but they should be limited to "effective supervision rules ".At the same time,in light of the invalid judgment of the public company stock-holding in our country,its legal effect may be affected by factors,such as the normative purpose of the supervision rules,information disclosure obligations,illegality,and special supervision rules for cross-listing.From the perspective of the consequences,liquidation after invalid illegal agency should be adjusted by the illegal unjust enrichment system,following the system of “the illegal unjust enrichment shall not be returned”,and it allows the beneficial shareholders to request restitution only in exceptional circumstances.Chapter four discusses the external effect of stock-holding of public companies.In practice,whether the creditor of the nominal shareholder executes the shares or the creditor executes the implicit shares of the debtor,it ultimately involves the identification of the debtor’s liability property.Although the formal requirements are used as the judgment standard for the debtor’s liability property,the enforcement objection of substantive ownership and the enforceability of the debtor’s implicit shares can correct the formal requirements.At the same time,through the analysis of the actor’s claim rights and return rules in the case of valid and invalid shareholding,it can be found that its internal legal effect will not affect the external effect.On the way to standardization,by weighing the heterogeneous interests of different subjects,the third party,as the substantive owner,can’t fight against the reasonable trust of the security right holder and the counterparty of the share transaction.The fifth chapter puts forward the optimization plan for the entrustment rule of stock-holding of public companies.At the level of legal norms,it reasonably guides the transformation from effective entrustment to active trust shareholding arrangement,and clarifies the independence and exceptions of trust shares.At the same time,it is necessary to systematically construct the supervision rules for the stock-holding of public companies,which they mainly include the formation of multi-level regulatory requirements,and the refinement of rules for the exercise of share rights and interests in "mismatching between name and reality" investment arrangements,and the reference of share rights and interest transparency rules in comparative law.In addition,it needs to optimize the channel for the mandatory provisions to interfere with the effectiveness of the stock-holding.In other words,it needs to pay attention to the distinction and determination of the stock-holding,and optimize the channels for administrative regulations to interfere with the effectiveness of private law.As for the external effect of stock-holding,its core lies in resolving the conflict of rights between the beneficial shareholders and the preservation creditor,and giving priority to property preservation can coordinate the external effect dispute.Chapter six is the conclusion of this paper.This chapter briefly summarizes the existing problems,main viewpoints and optimization of validity rules of stock-holding of public companies.