Judicial Identification And Standardization Of Shares Nomination In The Listed Company

The Fifth Plenary Session of the 19 th CPC Central Committee will comprehensively deepen the reform and build a high-level socialist market economic system as one of the 12 important measures to achieve the main goals of economic and social development and socialist modernization during the period of the 14 th five year plan.It is suggested that we should adhere to and improve the basic socialist economic system,give full play to the decisive role of the market in the allocation of resources,give better play to the role of the government,and promote the better combination of effective market and promising government.Listed companies,with large scale and involving many interests,are important subjects of modern economic activities.Good regulation of listed companies is very important to promote the development of high-level socialist market economy system.Through the analysis of judicial cases in recent years,it is found that holding shares by proxy is becoming the choice of more investors of listed companies.The stock system is the cornerstone of the listed company system.The in-depth study on the stock holding agency can arouse the enthusiasm of social capital investment and entrepreneurship,stimulate the active factors of the company operation,standardize the company’s trading behavior,and boost the economic development.The problems reflected in the judicial cases are the real problems of economic and social development,which need to arouse the high attention of the practical and theoretical circles.Through the in-depth and detailed analysis of the settled cases,this paper leads to the causes of the problems,and discusses the judicial decision-making and legislative regulation combined with the policy background and the logic of the legal system,so as to straighten out the legal logic and the legislative and judicial methods of the regulation of the issue in the absence of explicit provisions in the law,so as to make the share holding of listed companies become more and more common The title is perfectly embedded in the current legal system,and the loopholes in the law can be eliminated by mending the provisions in legislative technology.The first part starts with judicial cases,analyzes the number of cases,distribution area,judgment ideas,etc.,and summarizes the focus of disputes.This is equivalent to putting forward the problem.Through the concrete and objective description of the facts,it provides the direction for the next step to analyze the referee’s thinking and analyze the crux of the problem.After that,this paper deeply deduces the current judicial judgment logic,points out the possible shortcomings of this method,analyzes the reasons for this deficiency,and focuses on the legal issues related to the holding of shares.The second part is to explore the source,through the analysis of shares,to explore the mechanism of holding shares.The mechanism of holding shares on behalf of others is the basis and key to clarify all legal issues related to holding shares on behalf of others.Through the analysis of shares,we can explore the core of holding shares on behalf.Shares are the consideration paid by listed companies to investors.Shares are the tickets to become members of the organization.Shares are the basis of capital market transactions.Share holding on behalf is a kind of state of "name does not match reality" by grafting the relationship of entrusted holding on behalf in the normal process of share investment.The first layer is the entrustment relationship between the investor and the agent,and the other layer is the company law relationship between the agent and the company.There is a natural legal barrier between the two layers of relations,which can only be penetrated under specific circumstances.In judicial practice,the phenomenon of holding shares on behalf of others is viewed more negatively.The reasonable consideration is to jump out of the framework of the existing law,from the principle,from the higher and larger perspective of economic and social development,to judge whether the appearance of this layer of rights can bring evasive effect,from the perspective of legal effect,whether it is allowed to exist.The third part is the regulation from the perspective of contract law,and discusses the role of the effectiveness mechanism in regulating the share holding of listed companies.At present,judicial practice for the handling of the problem of holding shares on behalf of listed companies,generally through the source,through the denial of the effectiveness of the agreement to regulate.This kind of regulation is too direct and single,and does not take into account the double-layer relationship in the shareholding agency,resulting in the logic of regulation is not smooth and the effect is not ideal.The regulation of stock holding on behalf should not break the double-layer relationship,break through the path dependence of negating the validity of the agreement,and take "legal protection" and "behavior externality" as the important basis to start the invalid mechanism.Therefore,in view of the three stages of share acquisition,share holding and share transfer,we establish the rules of identity conflict,the introduction of corporate attribution rights and the strict binding rules of sponsor guarantee mechanism.The fourth part is the regulation from the perspective of company law,and discusses the standard of shareholder identification.This paper analyzes the identification standard of shareholders.The identification of shareholders’ identity in the case of holding shares on behalf of listed companies involves the understanding and application of basic concepts such as shareholders,shares and equity,the solution of a series of related problems caused by the fuzzy understanding of basic concepts,and the legal identification and applicable rules under the form of "inconsistent name and reality".By analyzing the implication of shareholder identity,the core characteristics of shareholder identity are explored,that is,they are attached to the company,limited by the company,bound with shares,and have the right to exercise a series of rights corresponding to shares.It can be seen that the object of holding shares on behalf of shareholders can not be the identity of shareholders.For investors,there is no possibility of reversal if they register the proxy holder as a shareholder.They can only obtain the shareholder qualification through the transfer of shares.From the perspective of the significance and role of shareholder identity,this paper introduces "scenario perspective",that is,the consensual scenario between shareholders and the company,the co governance scenario between shareholders and other shareholders of the company,and the transaction scenario between shareholders and capital market.The consensual scenario focuses on the consensual counterpart,the co governance scenario focuses on the extent of shareholders’ participation in the company’s affairs,and the transaction scenario focuses on the transaction cost and transaction order.Through the analysis of the key elements in the scene,the standard of shareholders’ identification of "form theory plus exception" is obtained.This standard is applicable to the derivative problems of share holding,which can effectively follow the logic of law application and solve the problems of law application.The fifth part discusses the significance of information disclosure mechanism to the holding of shares on behalf of listed companies.There are some inherent defects in the information acquisition of the securities market,such as the contradictory demand in the output link.The exporter needs not only information disclosure,but also hidden information.Because the exporter is the producer of information and controls the source of information,under this contradictory psychology,the information presented in the market is incomplete.Another example is the application dilemma of input link.Immateriality makes it difficult to understand the information.Even if the company publishes its internal information,because of its strong professionalism,ordinary investors are more difficult to judge whether the information is true or false in the face of a large amount of information,and it is also difficult to understand and digest the information carried by the information itself.Information disclosure mechanism can solve the problem of incomplete and uneconomic information in securities market.Holding shares on behalf of listed companies is a kind of hiding for the main body,which is contrary to the requirements of information disclosure to a certain extent,and will affect the other party’s more trading judgment under specific circumstances.In the docking of information disclosure mechanism,not all capital contributions need to be traced according to different situations;in order to ensure the economy and effectiveness of supervision,it is necessary to stage the ex post supervision over ex ante supervision.In the sixth part,based on the analysis of the above five chapters,it discusses how to apply when an act involves multiple department laws.Through the analysis of the applicable regulations of the special law of general law,we can achieve the hierarchical requirements of the applicable legal system;through the analysis of the applicable rules of public law and justice,we can demonstrate the classification requirements of the legal system;through the establishment of the connection between law and policy,we can see the openness requirements of the legal system.Based on the above different types of regulation methods,the internal logic and value sequence of the application of the law can be worked out,and the regulation criteria covering various holding situations can be found as far as possible.