| As a new type of investment,nominee shareholding plays an increasingly important role in promoting the development of China’s market economy and meeting the needs of investors,but due to the lack of clear legal provisions at the legal level,there is no comprehensive and unified adjudication rule for the resolution of such disputes in judicial practice,which makes all parties disagree on the adjudication results,which is not conducive to maintaining good and stable social relations.The mainstream view of commercial appearance theory tends to protect the trust interests of third parties,holding that nominee holding agreements only have internal effect,cannot oppose external relations,the rights of actual investors are limited,rights protection imbalance is unbalanced,and it is of great practical significance to improve the rights and interests protection system of actual investors and correct the imbalance of rights protection.At present,the direct provisions on nominee shareholding are limited to the affirmation of the effectiveness of nominee shareholding in Interpretation III of the Company Law,the conditions for the conspicuity of the actual investor under completely anonymous nominee shareholding,the nominee shareholder’s unauthorized disposal of equity by reference to the bona fide acquisition system,and the obligation of the nominee shareholder to make up the capital contribution when the capital contribution is not fully contributed.As a result,there is a lack of clear legal regulation on the validity and determination of the equity nominee holding agreement,the unclear legal status of the actual investor,the imperfect system for the actual investor to be named,the weak protection of the rights and interests of the actual investor after the passive disposal of equity,and the unclear enforcement provisions on whether the actual investor can exclude the equity.The legal relationship between the actual investor and the nominal shareholder shall be determined by the proxy theory,and it is clear that the nominee shareholding belongs to the actual investor.The nominee shareholding agreement shall be in writing,and the nominee shareholding shall be judged on the basis of whether it harms the national and public interests on the premise of not violating the mandatory provisions on validity.Improve the recovery system for actual investors against nominee shareholders or transferees after the nominee holding agreement becomes invalid.When the actual investor is famous,different conditions for conspicuity apply according to different circumstances,and if the actual funder cannot be known due to obstacles,it can protect its rights by rescission of the contract,filing a lawsuit,etc.The provisions on conspicuous names in the 9thconferenceminutes are upgraded into law to enhance their application status and uniformity,and the objects of conduct are distinguished into third parties and general creditors,stipulating that the bona fide acquisition system can be applied between nominal shareholders and trading third parties,and the bona fide acquisition system cannot be applied between nominal shareholders and general creditors,and the actual investor cannot exclude the application for enforcement by the third party of the transaction,but can exclude the application for enforcement by ordinary creditors,so as to achieve the purpose of protecting the rights and interests of actual investors. |
