Research On The Legal Regulation Of Shareholding Substitution

With the development of China’s socialist market economy,since the State Council introduced the policy of "decentralization",the market access threshold has been lowered,attracting numerous investors to step into the commercial investment boom,and the phenomenon of proxy holding of equity interests has frequently occurred in the process of corporate governance.In order to avoid the regulation of investment or their own needs,some investors choose to contribute in the form of equity holding,that is,the actual investor and the nominal shareholder signed an equity holding agreement,the nominal shareholder instead of the actual investor recorded in the industrial and commercial registration and shareholders’ register,the actual investor itself chose to hold equity in an "incognito" form.However,with the various disputes arising from the shareholding,its drawbacks have also emerged,due to the anonymity of the actual contributor,which has caused a lot of negative impact on the protection of their own interests or the company,and more shareholding lawsuits have arisen in judicial practice.Therefore,in a sense,the proxy holding of equity has received extensive attention from academia and practice,and the study of legal issues of proxy holding of equity has become one of the key contents of corporate governance.The empirical study on the disputes of shareholding in China shows that,in China’s judicial practice,the largest proportion of the lawsuits of shareholding is the "shareholder qualification confirmation disputes" filed by the actual contributors.However,there is not yet a specific and clear law and regulation on the regulation of proxy holding in China,and the balance of supply of the proxy holding system is not balanced.In January 2011,the Supreme People’s Court issued the "Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Company Law of the People’s Republic of China（III）",which provided for the first time on the issue of proxy holding of equity interests.The local courts are not unanimous as to whether the identity of the shareholder of the actual contributor can be determined according to the judicial interpretation,and there are deviations in the interpretation and application of this provision by the judges,which makes it difficult for the actual contributor to defend his legitimate rights and interests through litigation,and there are many "different judgments in the same case",and the prestige of the judiciary has been reduced in the hearts of the people.Therefore,it is necessary to analyze the shareholding from the perspective of legislation,and to build the institutional basis for many disputes such as the attribution of the shareholding,so as to reduce the negative impact of the shareholding.In comparison with the legal regulation of shareholding in foreign countries,the company law system in common law countries is relatively advanced and mature,with a more comprehensive understanding of the legal concept of shareholding,and the legislation is also more perfect.Whether it is the "mature trust system" of the common law countries or the "commercial appearanceism" promoted by the civil law system,it can be used as the standard for the review of the validity of the shareholding agreement and the recognition of the shareholders’ qualification,so as to guide the judicial practice of shareholding in China.The legal practice of shareholding in China.In order to build a perfect legal system of shareholding,we learn from the experience of foreign countries on the issue of shareholding and combine it with the specific problems that may arise in our judicial practice.In this paper,through empirical analysis of cases,review of jurisprudential basis,and comparison of foreign systems,we gradually build a system of shareholding system that matches the current situation of China’s corporate law practice.Firstly,it defines the proxy holding from the legislative perspective and clarifies its legal attributes with specific provisions;secondly,it makes up for the structural defects of the proxy holding system and strengthens the protection of the rights and interests of the proxy holding by increasing the risk prevention of the proxy holding;finally,it builds a bridge between the proxy holding and the trust system and connects with the mature trust system in the common law system.