The Research On The Identification Of Shareholders’ Qualifications Under The Stock-holding For Others

Stock-holding is a common economic phenomenon in China,and it is also an important cause of disputes over shareholder qualifications.Under normal circumstances,investors are commended as shareholders of the company after registration,and the qualifications and rights and obligations of shareholders are clearly determined.In the case of stock-holding,the agreement between the actual investor and the nominal shareholder caused an inconsistency between the actual capital contribution and the appearance of the shareholder’s record,resulting in disputes over shareholder qualification determination.Since the qualification of shareholders of limited liability companies still involves the protection of harmonious cooperation among shareholders,this problem is more complicated.This article also focuses on the issue of shareholder qualifications caused by the stock-holding in limited liability companies.Regarding the identification of shareholder qualifications under stock-holding,there are not only disputes in judicial practice,but also different theories in theory.In judicial practice,the identification of shareholder qualifications involving equity holdings has become an important category of disputes concerning shareholder qualification confirmation.The judging authority has not only the opinion that the nominal shareholder enjoys the shareholder qualification,but also the opinion that the actual investor enjoys the shareholder qualification.On the whole,the divergence of the adjudication agency mainly focused on the nature of the actual investor’s capital contribution,the recognition of other shareholders of the company,and the understanding of the legal significance of the actual investor’s exercise of shareholder rights.In theory,the academic circles have formed three theories regarding the qualification of shareholders under the equity holdings: form theory,substance theory,and eclectic theory.The substance theory can be further divided into the substantial capital contribution theory and the substantial recognition theory,and the eclectic theory can be furthered,including Distinguish between internal and external differences and specific scenarios.Generally speaking,one of the reasons why this type of shareholder qualification determination is extremely controversial in practice and theory lies in the lack of a clear understanding of the application of appearance doctrine and intention doctrine in the organizational law,and the second reason lies in the lack of a clear understanding of the concept about the shareholder qualification.Compared with appearance doctrine,intention doctrine has more applicable space in the determination of shareholder qualifications.The application of appearance doctrine not only ignores the true meaning of the company,and is not beneficial to the protection of the interests of actual investors and the company’s external creditors,and most importantly,the valid company law does not leave enough room for appearance doctrine.Intentionalism,as opposed to appearance doctrine,refers to the true meaning within the company,rather than the true meaning between the actual investor and the nominal shareholder."The theory of group recognition" is a concrete manifestation of intentionism in the qualification of shareholders.Since shareholder qualifications have group identity attributes and company internal attributes,the acquisition of shareholder qualifications requires not only the expression of the investor’s intention to obtain shareholder qualifications,but also the recognition of the investor’s shareholder qualifications by the company group.The "group recognition theory" has two levels of organizational law meaning: in the external sense,it puts the determination of shareholder qualifications in the perspective of organizational law,and clarifies the boundaries between organizational law and transaction law.In the internal sense,this theory takes intentionalism as the theoretical basis for the qualification of shareholders,and harmonizes the application of appearanceism and intentionalism.Relying on the analysis framework of the "group recognition theory",the qualification of shareholders under stock holdings should be carried out according to the following ideas: First,affirm the shareholder qualifications of nominal shareholders in principle.Although the nominee shareholder sincerely intends to hold equity for the actual investor,his behavior to contribute or promise to contribute capital to the company in his own name reflects his intention to obtain shareholder qualifications,and the company records it in the shareholder register and handles registration The behavior also reflects the recognition of shareholder qualifications of nominal shareholders.Therefore,nominal shareholders enjoy shareholder qualifications in principle.Second,under certain circumstances,the qualifications of shareholders of actual investors should be limited.Affirming the shareholder qualifications of nominal shareholders does not mean completely denying the shareholder qualifications of actual investors.The shareholder qualification of the actual investor can be recognized when the following four requirements are met at the same time: Firstly,the actual investor has the intention to obtain the shareholder qualification,which is mainly reflected in the express intention of signing the agreement on the ownership of shareholder qualifications,or an implied expression of intent that a person actually exercised shareholder rights.Secondly,the shareholder qualification of the actual investor has been recognized by other shareholders of the company.The degree of recognition by other shareholders of the company should vary depending on the time when the nominal shareholder acquires the equity.If the time when the nominal shareholder acquires the equity is when the company is established,the actual investor shall be unanimously approved by the company’s other promoters and shareholders.If the time when the nominal shareholder acquires the equity is after the establishment of the company,the actual investor only needs to be approved by more than half of the company’s other shareholders.The recognition methods of other shareholders of the company include express and implied.The former is embodied in the relevant recognition agreement that the company participates in,and the latter is embodied as the tacit consent of the actual investor in exercising shareholder rights.However,it should be noted that the knowledge of other shareholders of the company on the stock-holding is not equivalent to the recognition of the qualifications of the actual investor’s shareholders.Thirdly,the shareholder qualification of the actual investor has been recognized by the company.The company’s approval also includes both the express and the implied,which is the same as the judgment method approved by other shareholders of the company.Finally,the actual investor should meet the legal requirements of the subject’s qualifications.The law here should be broad,including administrative regulations.The recognition of shareholder qualifications is different from the judgment of the effectiveness of equity holding agreements.For the purpose of realizing supervision,even if the equity holding agreement is valid,the actual investor should abide by the legal restrictions on the acquisition of shareholder qualifications.