| The issues and matters in terms of nominee shareholders in the company are frequent. There happen more and more the legal disputes due to nominee shareholders. However, it is not clearly stated in terms of nominee shareholders'legal positions in the newly issued "Company Law". Since there have not been transparent and straightforward stipulations with respect to nominee shareholders so far, such cases are usually decided by the judges from respective and different point of view, which makes some confusion. A lot of scholars, judges, attorneys and nominee shareholders have address much attention to this legal issue and offer quite a few different proposals, of which, "trust of right of shares" is one efficient solution to settle the legal position issue of nominee shareholders. From the point of view of trust law fundamental, this dissertation makes systematic analysis and elucidation in both theoretic and practical aspects for trust of right of shares. From the perspective of nominee shareholders, this dissertation will make a research on trust registration of right of shares and contracts for trust of right of shares, and it will be discussed how to use trust of right of shares to settle the legal position issue of nominee shareholders in the practical operations.This dissertation is made up of three parts:preface, text and conclusion. And four chapters are included in the text, about 33 thousands words. Among them, the third and fourth chapter is the focus of this dissertation.In the first chapter, it is briefly elucidated of the definition of nominee shareholders. This portion makes analysis on the specified definition of nominee shareholders mainly from aspects of the history and the status of nominee shareholders, definition of nominee shareholders and basic characters, classification of nominee shareholders. Implicit shareholders for the following current situation and pave the way for its reflection of the analysis provided.The second chapter basically makes analysis on the status of the nominee shareholders and make some introspection. The author analyzed the problem of nominee shareholders analysis from two aspects:The status of dormant shareholders academic and the status of nominee shareholders legislative situation. Through the profound analysis of the status of nominee shareholders, I find the qualification cognizance of the status of nominee shareholders have large differences, and determination standards have unified. After the introspection of nominee shareholder of the legal relationship, the author focuses on the qualification of the nominee shareholders, and think the qualification cognizance of the nominee shareholders should adopt the view of "compromise doctrine", just as namely to formalism primarily and subsidiary by the view of "essence doctrine". In the construction of the legal relations of nominee shareholders, we should make a point that maintain the swift and security for trade is the first principles, and to correct the legal relationships of processing company, nominee shareholder and show shareholder.In the third chapter, it is emphasized to analyze the rationality and value of the specified operation methods to solve nominee shareholders by trust of right of shares. First of all, it is summarized of the shortcomings by explaining the nominee shareholders with traditional civil law concept, and then analyze the advantage by solving nominee shareholders by trust of right of shares. The rationality is explore by these aspect:First, Illustrate and analysis the jurisprudence of trust of right of shares. It is briefly introduced of(l)the definition of Trust,(2)the establishment conditions for Trust,(3)the relationships on Trust and the parties in Trust, so that deeply learn how to establish efficient systems of Trust in the practice and settle the nominee shareholders'practical issues. It is of emphasis analysis on legal systems of trust of right of shares. This chapter is stated on rights and obligations for parties for trust of right of shares, relationship between consigner, man datary, and the company, and it is researched on the legal relationship between consigner, man datary, and the third parties. Afterwards, as per the key points of this dissertation, it state the advantage of settling the legal issues of nominee shareholders by means of trust of right of shares, which contains(l) the advantage bankruptcy isolation,(2) the advantage tax evading,(3) the advantage of strict fiduciary responsibility to safeguard,(4) the advantage of elastic development space.In the forth chapter, it is emphasized to analyze the way to solve nominee shareholders by trust of right of shares. Since the legal relationships for trust of right of shares are very complicated, author only specifically analyze the practical operations for trust registration system and trust contract for right of shares accordingly. At the same time, the said 2 matters are the significant issues to reach the purpose of trust of right of nominee shareholders' Firstly, having discussed on(1)the implication and value of public belief from registration,(2)the significance in legal and value in system from trust registration of the property and the validity of registration,the author makes detailed discussions on scope and methods for trust registration of nominee shareholders, especially raise out the specific and practical recommendations on methods for trust registration of nominee shareholders. Secondly, via analysis from legal basic theory side on the agreed basis and validity conditions of contract establishment for trust contract of right of nominee shareholders, the author makes a detailed research on several significant matters for trust of right of nominee shareholders' which is needed to clarified. It is analyzed what conditions/matters are the required ones in the trust contract of right of nominee shareholders' and what are selective matters hereto. It is decided in this chapter to utilize the trust contract of shares to clarify the legal relationship between both parties in trust.In the final portion, the conclusion of dissertation, the author reiterates that "Trust Law" as well as relevant law and regulations is an important law and one of important solutions to nominee shareholder issues and it still needs to be collated through analysis of the current situation of trust of right of share. It is needed to arrange the implemental regulations of "Trust Law" and clarify the legal positions of nominee shareholders. It will make up for the current insufficient law and regulations and ensure equity and justice of Law. |
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