A Study On The Validity Of The Stock Holding Agreement Of Listed Companies

In recent years,the supervision of China’s financial market has been relatively strict.China Securities Regulatory Commission(CSRC)holds a comprehensive attitude of prohibiting the holding of shares on behalf of listed companies.The high standard of information disclosure of listed companies requires that their ownership structure must be clear,and the phenomenon of holding shares on behalf of listed companies violates the disclosure requirements of China Securities Regulatory Commission to a certain extent.There has been a lot of controversy about the validity of the agreement of holding shares on behalf of Listed Companies in the academic and practical circles.Although Article 24 of the third interpretation of the company law in 2010 has made an effective determination on the principle of holding shares on behalf of limited liability companies,there is no clear legal Provisions on the determination of the validity of holding shares on behalf of listed companies.Before the case of Yang Jinguo and Lin Jinkun,the judicature always followed the principle of encouraging the freedom of transaction and the principle of judicial autonomy,and analogically applied the provisions of recognizing the holding of shares on behalf of a limited liability company.After the dispute case of equity transfer between Yang Jinguo and Lin Jinkun,the judicial thinking has changed,and it began to hold a negative attitude towards the behavior of holding shares on behalf of listed companies.The change of judicial thinking reflects the gradual infiltration of strict administrative supervision into the judicial field.The boundary of administrative supervision has been widely discussed again,and the validity of the stock holding agreement of listed companies is closely related to it.At present,the judicial reasoning path for the validity of the agreement of holding shares on behalf of listed companies is not smooth,and there has been a great dilemma in the interpretation,which needs to be solved.This paper is mainly divided into three parts to explore the effectiveness of the stock holding agreement of listed companies.The first part clarifies the theoretical basis of the current stock holding of listed companies,and summarizes the basic views on the effectiveness of the stock holding of listed companies.There are four theories at present.At the same time,it analyzes the significance of the existence of this kind of holding behavior.The second part first combs the changes of the judicial thinking of the holding agreement of the listed company’s shares in our country,from the effective principle of the previous agreement to the invalid principle now,and lists several judicial cases under the new judicial thinking.The last part puts forward some opinions on judging the effectiveness of the holding agreement of listed companies.First of all,from the perspective of judicial trial,this paper puts forward the factors that should be considered in determining the effectiveness of the agency agreement,such as the form of agreement,the stage of agency,the reasons for agency and the proportion of agency.At the same time,it also puts forward the idea of effectively distinguishing legal holding and illegal holding from the legislative level,and from the perspective of judicial judgment,it puts forward that we should improve the argumentation and reasoning of identifying the effectiveness of holding agreement,and more rigorously identify the effectiveness,so as to ensure that it can be more standardized and feasible when hearing and identifying the effectiveness of holding agreement of shares of listed companies.Finally,this paper holds that the validity of the holding agreement of listed companies should still be based on the principle of validity,with the exception of invalidity.It adopts the distinction theory as the basic point of view to demonstrate the validity of the holding agreement,and ensures the freedom of trade of commercial subjects to the maximum extent on the premise of ensuring social public interests.