Research On The Types Of Equity Holding Agreements Of Listed Companies

As a typical form of commercial investment,share-holding entrustment is becoming more and more common in China with the development of securities capital market in recent years.This kind of investment form,because it gives the investment subject more choice,makes the investment way more flexible and diversified,thus plays a positive role in arouses the investment enthusiasm of the investment subject economy,and promotes the development of China’s market economy to a certain extent.Because of the actual investors get hidden,share-holding is a very secluded legal behavior,the separation of "the holder of shareholder status" and "the actual owner of the rights" will not only increase the securities capital market on the non-specific investors trade risk,increase the probability that the relevant disputes occur and the difficulty of the referee,but also can make the actual investor is not regulated,It increases the difficulty of administrative supervision and endangers the security and normal trading order of securities capital market.This contradiction is particularly prominent when the entrusted shares are listed company shares.This is because of the listed company is public,because of its issued shares in securities trading market behavior lead to extensive interests subject and uncertain,so when this kind of public and equity generation hold the concealment of the behavior in conflict,often leads to more serious than under other company types and more difficult to control the adverse consequences.Therefore,different from the previous recognition of the validity of the share entrustment agreement of listed companies by referring to the provisions on the validity of the share-holding entrustment agreement of limited liability companies,the current judicial practice shows a negative evaluation trend on the validity of the share-holding entrustment agreement of listed companies.The court holds that "although the violation is the prohibitions of the administrative rules,However,because it involves the protection of the interests of the majority of non-specific investors and the security and trading order of the securities market,the validity of the Entrustment Agreement is denied on the ground that it damages the public interest ".Both approaches are imperfect.On the one hand,we should clearly recognize the distinctive characteristics of listed companies that are different from limited liability companies,and make different evaluations for the same legal act because of the different corporate forms,which is in line with the methodology of specific analysis of specific problems.On the other hand,although it is the same legal act,the purpose behind it or the legal effect to be realized may be quite different.Therefore,the validity of the agreement should be judged after analyzing the purpose and meaning behind the effectiveness of the entrust agreement according to the rules of expression of intention.Moreover,it should be noted that the tolerance of the commercial law theory and the civil law theory are different,so we cannot ignore the fundamental nature of the shareholding is a commercial legal act.Therefore,on the basis of a critical discussion on the identification conclusions of the effectiveness of equity entrust agreements in practice,this paper advocates a typed analysis of the equity entrust agreements of listed companies according to the "theory of equity interest separation"and the method of balance of interests under the principle of proportion,and then distinguishes and identifies the effectiveness of different types of agreements.Validity of negation to deal damage to the social and public interests as the basic reason,because of the social and public interests itself definition is fuzzy,so according to the characteristics of securities capital market will be specific to the interests of the specific investors,with a final deal on whether the implementation of the damage the benefits of specific investors as a benchmark holdings generation protocols can be divided into two types.Then,under the guidance of the principle of proportionality,the interests between the purpose of the agreement and the interests of the majority of non-specific investors are measured.Only when the agreement meets the requirements of appropriateness,necessity and balance at the same time,can the agreement be identified as invalid.Determined after the agreement is invalid,in order to guarantee the stability of the shareholding structure,become nominal shareholders equity ownership,about the allocation of investment income shall be determined by the parties to the negotiation,which not only conforms to the business subject up to the standard of"rational man" expectations,but more can reflect the respect of the business field of party autonomy.As for the right acquired by the third party in good faith according to the legal procedure,the tendency protection should be given.Even if the agreement is valid at this time,it should be made clear that it is only internally valid.For a bona fide third party who establishes reasonable trust based on the appearance of rights,such as the contents of the shareholder register or the industrial and commercial registration,The actual investor cannot take the validity of the agreement as the ground against the legal rights of the third party in good faith.