Discussion About The Ownership And Disposition Of The Shareholding In The Share-Holding Entrustment Relationship

To discuss about the ownership and disposition of the shareholding in the share-holding entrustment relationship,the core is undoubtedly the former.All legal issues of share-holding entrustment more or less relate to the discussion about the ownership of the shareholding.Coincidentally,the ownership of the shareholding is the most controversial issue among them.Nowadays,there are two mainstream views in academia:Theory of Substance and Theory of Form.Meanwhile,in order to identify the unauthorized disposition of entrusted shareholding by registered shareholder,Article 25 in "Application of the Company Law(III)" incorporate bona fide acquisition system into " Property Law " creatively.It results in logical contradictions among the articles and aggravates controversy about the ownership of the shareholding in academia.The discussion about the ownership of the shareholding directly affects the identification of nature of the share-holding entrustment relationship.Generally,several views are held in academia such as normal contractual relationship,partnership,relationship of anonymous agency or trust etc.And each view has different starting points with both advantages and disadvantages.The further reason of tremendous contradictions about the nature of share-holding entrustment relationship and ownership of the shareholding is that the mode of shareholding alteration in lack of publicity in our country.Therefore,the discussion about shareholding ownership should not be only about the balance of interests between the actual investor and the registered shareholder but also to consider the shareholding alteration and civil law system in our country especially the distinction of creditor's right and property right.To identify the unauthorized disposition of entrusted shareholding by registered shareholder,it should be discussed in two aspects:the burden act and disposing act.The issue of the shareholding ownership does not impact the effect of burden act.The provision of "malicious collusion" in Article 52 of "Contract Law" is somehow not applicable.However,the existing of Article 25 in"Application of the Company Law(?)",may result in the situation that unauthorized disposition of entrusted shareholding by registered shareholder may be identified as"malicious collusion",and impact the effect of burden act therefrom.For identification of effect of disposing act,the key is identification of right of disposing.Article 25 in "Application of the Company Law(?)" incorporating bona fide acquisition system indicates that the Supreme People's Court tends to identify the disposing act as unauthorized disposition.Nevertheless,the incorporation of bona fide acquisition system leads to the discussion of bona fide acquisition system of shareholding.Based on the shareholding alteration in our country and the provision of the third paragraph of Article 32 in "Company Law",bona fide acquisition system should not have been applied to shareholding.The provision of Article 25 in"Application of the Company Law(?)" reflects the Supreme Court's efforts of balance of interests among the actual investor,registered shareholder and the third party.However,from the perspective of civil law system,it dims and contravenes the difference from creditor's right and property right.