Alidity Identification And Treatment Of Equity Entrustment Agreement

More More and more investors put their money into companies in order to obtain investment income and realize the maximum use of capital.However,in the process of investment,due to their own concerns and institutional constraints,the phenomenon of equity entrust is more and more common.However,the relevant legal rules have not been established and improved,which makes the disputes about equity entrustment emerge in an endless stream.Among them,the most prominent and controversial legal issue is the identification and treatment of the validity of the equity entrustment agreement,which has now become a difficult judicial issue.This paper will sort out and analyze the trial situation and judgment thinking of 94 cases searched through similar cases.On this basis,combined with relevant legal principles,this paper will analyze and demonstrate the legal issues related to the identification of the validity of equity entrustment agreement and its handling,in order to improve relevant rules and standardize the legal behavior of equity entrustment.The premise of confirming the validity of equity entrustment agreement is the determination of the legal relationship of equity entrustment.The main viewpoints on the legal nature of the shareholding relationship are as follows: the theory of hidden agency relationship,the theory of shareholding trust relationship,the theory of partnership and co-ownership relationship,and the theory of common creditor and debtor relationship.In addition,there is a case analysis that the nature of the equity entrust relationship should be determined according to the content of the equity entrust contract,and the nature of the contract varies with the content.In addition to the legal nature of the equity entrustment relationship,the main disputes affecting the identification and treatment of the validity of the equity entrustment agreement come from the evasion of legal provisions in the reasons for the entrustment,that is,there are illegal factors in the equity entrustment behavior.In addition,the way of the equity entrustment and the identity of the target company are also important influencing factors.The validity of the equity entrustment agreement is still in dispute in the theoretical and practical circles.According to the provisions of the Interpretation of the Company Law(3)and the Civil Code,the equity entrustment act has legal effect as long as it does not touch the cause of invalidity of the civil legal act.And the main bone of contention is that equity generation are in violation of the actual investor identity access,ban on equity of the provisions of the generation of a target company whether because behavior disrupted the market order,financial security,public order,such as national macro policy and invalid,this also involves the rules can be used to determine equity generation as a mandatory requirement in the effectiveness of the agreement,and the national work conference on court in civil and commercial trial summary article 31 has been clear,namely,to a people’s court according to the specific situation of violate the disgraceful consideration,but it will also cause the judge discretion is too large,the difficult to unity.The effect after the validity of the equity entrustment agreement is determined mainly includes the ownership of equity and equity income.This part of the discussion will be carried out from three levels: the first is the ownership of equity and equity interest distribution theory and practice status quo;Secondly,there are problems in the existing adjudication paths.Finally,the corresponding solution path is proposed.The ownership of equity and the ownership of equity income are two different problems,which should be distinguished.Equity ownership problem namely the qualification cognizance of the shareholders,the shareholders qualification is relative to the company,is the company’s recognition of shareholder status,academic circles have essence,form and the difference between three theory,judicial practice in China tend to take the form of standards,and in the generation of equity because of the existence situation against law or the agreement violates the law mandatory provisions and invalid cases,It is unreasonable to judge the ownership of nominal shareholders blindly according to formal standards.Return on equity ownership is property value to obtain equity itself and its benefits,legal effect as the contract is invalid,because of invalid contract property interests to the processing of restorable and balance,in the judicial practice would return on equity ratio is in accordance with the principle of fair,on generation is allocated between both sides,but investment income is more belong to the category of party autonomy,The arrangement for the distribution of interests agreed upon in advance by the agents or implemented in the agent relationship shall be followed as far as possible.In addition,since the interests of the entrustment company are involved,the relevant opinions of the entrustment company can be included in the reference scope on the identification of ownership of the equity.For the actual investor rights can eliminate the ordinary on the problem of the enforcement of creditors,the practice has not unified scale by the referee shall specify the good faith system in equity positions in the applicable condition,the first to distinguish between nominal shareholders and the third person’s equity trading between disciplinary actions,or ordinary creditor’s rights debt relations,in the actual investor filed the execution objection proceeding,It is an important basis to judge whether the right of the actual investor can be excluded from compulsory execution.In addition,the existence of equity entrustment has its rationality and necessity,and the improvement of relevant laws and regulations is an important means to solve the existing related disputes.