On The Validity Of Thenominee Shareholding Agreement

The holding of shares is extremely common in China’s commercial activities and the practice of law Because it spans the two fields of civil law and commercial law,involving the actual investor,the nominee shareholder,other shareholders,the company and the relevant creditors and other multi-party entities,the separation of the "name" and "reality" of the shareholders,the duality of the capital contribution subject,resulting in the dislocation of rights and obligations,has caused many troubles in judicial practice.The equity nominee holding agreement is the basis for the existence of the equity nominee holding relationship,and the primary issue in resolving the equity nominee holding dispute is to clarify the validity of the nominee shareholding agreement.This paper strives to base on existing legislation and judicial interpretations,synthesize theoretical theories and trial practices,and conduct an in-depth analysis of the validity of the equity nominee agreement as a whole,as well as the legal effect of the nominee shareholding agreement from the perspectives of validity and invalidity.Excluding the introduction and conclusions,this article can be divided into three chapters.Chapter 1 analyzes the factors that have plagued stocks that have been plagued by discussions on the validity of nominee shareholding agreements.First of all,from the perspective of the factual elements that affect the validity of the equity nominee holding agreement,the reasons for the formation and the way of performance of the nominee shareholding agreement directly affect the validity of the nominee holding agreement,and the different companies of the target company are also on the nominee holding agreement Secondly,the determination of different legal nature determines the application and consequences of different laws,and the agreement of the equity nominee holding agreement is not only a simple creditor-debtor relationship,but also involves the identity change relationship of the equity,in view of the three mainstream theories of the current academic circles on the legal nature of the nominee shareholding,according to the different case circumstances,the entrusted agent says,Finally,there are still certain differences in understanding of the determination of the validity of equity nominee agreements in terms of the balance of autonomy of intention and strict supervision,the criteria for determining mandatory provisions,and the interpretation of whether the social public interest is expanded or limited.Chapter II focuses on the validity of effective equity nominee holding agreements,including investment equity rather than equity ownership On the basis of briefly introducing the three mainstream theories of the substance,form and distinction of shareholder qualification determination,it is believed that equity ownership is different from the ownership of investment rights and interests,and equity ownership should follow the principle of distinguishing between "disposition behavior" and "burden behavior",and nominee shareholding Attribution cannot be determined by the parties,but must be reflected in the will of the company.Chapter 3 explores in depth the legal consequences of an equity holding agreement.The main issues involved in the invalidation of the nominee shareholding agreement are the ownership of equity and the distribution of equity benefits.Regarding the issue of equity ownership after invalidation,the paper argues that the actual investor cannot obtain equity,and in principle,the nominee shareholder becomes a shareholder of "unity of name and reality",and in exceptional cases,the internal and external transfer,auction and sale are handled on the basis of listening to the opinions of the company and other shareholders to varying degrees;around the issue of the return of capital contribution and the distribution of profit and loss of equity value after the invalidity of the equity holding agreement Amend the rules for the application of unjust enrichment returns,according to the focus of civil and commercial law on the balance of interests and rights remedies,exclude the application of unjust gains not to return and collect value-added benefits in civil adjudication,and distribute or share the gain and depreciation of equity in proportion according to factors such as the contribution of the parties,the degree of risk and the degree of fault.