An Empirical Study On The Legal Nature Of Nominee Shareholding In Limited Liability Companies

Nominee shareholding is a typical theoretical proposition,which originates from judicial practice,but because of its concealment and high risk,it is often in an embarrassing situation in China’s legal theory and judicial practice.On the one hand,the field of civil and commercial law adheres to the principle of "freedom if the law does not prohibit it",and highly respects the autonomy of the parties,while there is no law in China that explicitly stipulates that nominee shareholding is an illegal act,on the contrary,the judicial interpretation issued by the Supreme People’s Court recognizes the validity of nominee shareholding agreements;On the other hand,as a legal tool,nominee shareholding is not fully accepted in terms of reason,and sometimes it may even be judged invalid due to violation of legal principles,which makes the effectiveness of nominee shareholding in a state of uncertainty.However,high risk often coexists with high return,the concealment of equity holding is accompanied by the protection of personal privacy,access to policy preferences,improve the company’s credit and other advantages,rather than trying to curb this phenomenon,it is better to regard it as a normal investment method,starting from the existing theory and system,to regulate it.As a fundamental issue that cannot be avoided in the study of equity nominee holding,its characterization not only affects the rights and obligations of multiple parties,but also determines the application of law in judicial practice.The causes of nominee shareholding disputes are complex and involve many different legal departments,resulting in many theoretical issues that have not reached a unified view,and the legal nature of nominee shareholding is one of them.At present,there are many discussions on this issue in the theoretical circles,but the views are different and divergent,mainly there are four theoretical views of principal-agent theory,anonymous partnership theory,nameless contract theory and trust relationship theory,among which,the principal-agent theory and the trust relationship theory are two more controversial theories,and the agency model and the trust model have a more consistent structure with the equity nominee holding model,but both have incomplete parts.In order to solve the qualitative problem of nominee shareholding,this paper analyzes the pros and cons of various existing views in the theoretical field through literature research method,comparative analysis method and empirical research method,combined with the results of case statistical analysis,and draws conclusions.This article believes that the hybrid mode of entrusted agent and trust should be adopted to determine the legal nature of equity nominee holding in limited liability companies in China,that is,in principle,the relationship between the actual investor and the nominal shareholder is a principal-agent relationship,and for the company,incomplete anonymous equity nominee holding belongs to a prominent agent,and completely anonymous equity nominee holding belongs to anonymous agency;Exceptionally,in special cases of nominee holding of collective equity(such as nominee shareholding by employee shareholding associations),it should be recognized as a trust legal relationship,in which the employee shareholding association is the trustee and each employee shareholder is the settlor and beneficiary.