Legal Validity Of Nominee Shareholders Transfer Its Shareholding

Limited company is featured by its harmonious among shareholders and capital integrity. Protect free transfer of equity or maintain the company’s cohesion; Protect the rights and interests of investors or a third person of goodwill, law and the articles of association will need to seek a balance between these rights and interests. It is more important under the condition of anonymity investment. The shareholders who fulfill its obligations of capital contribution to the company would be same with the name been recorded on the Stock transfer books. However, in the case of dormant investment, the actual investor is not consistent with the registered one. At this point, if nominee shareholders transfer its holding-stocks to others, it requires the law to seek a balance between the actual investor’s, the company’s and other shareholders’ as well as the transferee’s rights and interests. Real problem is that the actual investor’s interests and the third person’s are often contradict, the protection of the rights of a third person in good faith is likely to damage the interests of actual investor’s, and then hit investment enthusiasm, ultimately affect the economic development of the society.On the applicable < company law of the People’s Republic of China > rules(3), issued by the Supreme Court in 2011, makes a decision about these problems. However, the problem of nominee shareholders transfer its stocks is more complicated and changeable, only two clauses is still imperfect. This paper gives you detailed information of two cases and deeply analysis from the perspective of Jurisprudence; expect to make a certain contribution to judicial practice. Full text is divided into four parts:The first part: fundamental analysis of two cases about nominal shareholders transfer of equity. Trial results indicate that different courts have different opinion about the legal status of the nominal shareholders and the effectiveness of the equity transfer problems. There are three different attitudes: certain, negative, and according to the condition of different specific to determine. The nature of organization law “pay attention to the stability of legal relations” and the credibility of shareholder’s behavior of subscribed shares make the agree side thinks that affirm the legal status of the nominal shareholders should be conducive to protect transaction security. Opponents argue that obtain the status of shareholders ask you invest money into the company. Nominal shareholder’s autonomy that he agrees to not actually invest funds shall be respect. Accordingly, the shareholder’s qualification been cognized or not directly affect the effectiveness of the equity transfer.The second part: Causes and characteristics about nominal shareholders. Use the name of others to investment is a good choice to circumvent the law or for commercial considerations and other factors. Because of this, nominal shareholders was been registered as a shareholder without actual contribution.The third part: identification of the shareholder’s qualification. This part mainly analyzes the elements of obtain the status of shareholders, confirmation standards and evidence. Anyone who wants to be shareholder of a company must satisfy the conditions: first, have investment intention and agree with the other shareholders to invest into that company; second, be recorded in the registration materials. In the case of nominal shareholders transfer its stake, what criteria are taken to cognize the shareholder’s qualification can be a good balance of the rights and interests of the parties is a question worth thinking about. Due to the complicated reality economic situation, different disputes between the parties should be treated differently. You need to comprehensively analyze all the evidence data, such as the company’s articles of association, the shareholding agreement, Stock transfer books and commercial registration material when you cognize the shareholder’s qualification.The fourth part: the effectiveness of the nominal shareholders transfers of equity. Due to different transferee the transfer of equity restriction degree is not the same. It belongs to internal transfer if the transferee is other shareholders of the company. Under such conditions it needs to consider whether or not the shareholders of a company that knows the actual investor. The effectiveness of the transfer shall be denied if they know, otherwise the effectiveness of the transfer shall be sure. The external transfer means the equity transfer occurs between nominal shareholders and the third person. Under such condition the other shareholders opinion shall be respected. If a majority of the shareholders of a company approve of them transfer its shareholdings. The rights and interests of a third person not the actual investor’s shall be protected first. If a majority of the shareholders disagree, allowing they cancel the transfer behavior in a certain period of time.