The Validation Study Of Irregular Share Nomination

As the name implies,“irregular” share nomination means the share holding violates the regulation below the legal effect level of the law and administrative regulation,including direct violation and indirect circumvention of the regulation.In this regard,administrative supervision is often strictly banned all kinds of share nomination.However,as the basis for resolving disputes on behalf of share nomination,it meets the dilemma of law application and validity determination due to the imperfect contract legal system,the boundary pillars of public law and private law are facing new challenges at the same time.If the judgment is not proper,it will not only lead to the wrong legal prediction of the market,but also cause the trust interests of the parties to the contract to be damaged,from which the defaulters will benefit.Therefore,this thesis tries to find a suitable way to apply the law in the existing legal system,not only to make up for the lack of theoretical research on subrogation,but also to explore the special problems in determining the validity of financial and commercial contracts,in the hope of further discovery to enrich and perfect the unique theory of commercial contract.The first chapter makes an empirical analysis of the existing court adjudication,and further proves that the simple process of applying the law under the guidance of the Syllogism theory leads to confusion and conflict of the existing adjudicative views.Even under the same circumstances,whether the "direct violation" or "strategic type" of share nomination,the opposite conclusion can be drawn from the different angles of "illegal","evading law" and "social and public interest".At the same time,the academic views put forward from the different angles of the legislative theory and the explanatory theory also have great differences,especially the path of the legislative theory is long and difficult.However,it is the divergence of practical and theoretical points of view that reveals the efforts of practitioners and researchers to continue to try reasonable referrals from various angles.It also provides the perspective of methodology and interpretation theory in the current legal system to find the real legal basis and judgment method to determine the validity of irregular share nomination,and starting the second and third chapters of the discussion.The second chapter reviews the dilemma of judicial application caused by the imperfection of the existing contract legal system,and confirms that what can really be used as the basis for judging the validity of irregular share nomination is the "social and public interest" clause.First of all,through the neutral confirmation of the value of the evading behavior of the law,this part demonstrates the mistake of the direct view that the "strategic type" of share nomination is not valid.At the same time,because the "strategic type" of share nomination often violates the regulatory provisions which tend to restrict ownership rather than the share nomination,it is further proved that Article 52,item 3,of the contract Law is not suitable.The application of this clause can only fall into the "test" of the "social and public interest" clause;Secondly,through a brief introduction of article 52,item 5,which has long been criticized in the theory of contract law,the essence of this clause is a conclusion-oriented summary.It is pointed out that the role of regulation should not be reflected in the limitation of the source of adjudication law and norm attribute,but in the core of the "social and public interest";Finally,it is clear that the "social and public interest" clause is the legal basis that can be applied in the current contract legal system and affect the judgment of validity.The development of theory and practice has the tendency of "unifying" the clauses of "social and public interest" and "illegal and invalid".Last but not least,the key point is how to understand the connotation of "social and public interest" which can affect the judgment of validity.Therefore,at the end of this chapter preliminarily define the concept of "social and public interest",the protection of interests involved in regulatory provisions is divided into "economic and public order".But the further definition and judgment of this connotation cannot reach a unified criterion of distinction in theory,so we must leave the problem to judicial practice and use scientific methods to seek a more unified logic and path in individual the concrete cases.This leads to the third chapter of the focus of discussion.The third chapter is the theoretical explanation of the method of legal application with the core of "interest measurement",and the concrete application examples combined with the proposition in this thesis.In the first section of this chapter,it is pointed out that "interest measurement" is a breakthrough to the Syllogism theory of the traditional conceptual law theory,which is of great methodological value,but it is considered not to be of practical value because of its abstractness.For this reason,a legal method theory is developed,which takes the method of legal interpretation and the method of filling legal loopholes as the main content.However,as far as the validity judgment of irregular share nomination is not only a hidden loophole in corporate law,but also a legal interpretation of the general provisions of "social and public interest" of contract law.More importantly,the fundamental of these traditional legal methods is a summary of the methods of "interest measurement",and these legal methods are not enough to cover the full connotation of the use of "interest measurement".In fact,in the theoretical study of the use of "interest measurement" methods,there is also an independent perspective from the traditional methodology of law,and gradually formed a consensus on the "proportional principle" method derived from public law as a method of limiting public power."determine the purpose" as the premise,through the "appropriateness principle","the necessity principle","the narrow sense of proportion principle" three specific principles together to measure the "purpose" and "means" as the core of the "proportional principle",Under the concept of commercial law,it plays an important role in measuring the boundary between social public interest and private law interest.Therefore,it is necessary to make sure the rationality of the irregular share nomination for the premise of "definite purpose",as well as the special thinking of commercial trial,which runs through the next three specific principles all the time.First of all,from the practical reasons and examples of share nomination,it is proved that share nomination is a reasonable product to meet the needs of various kinds of investment and financing,together with a brief analysis of the regulatory concepts in the more developed foreign financial markets,it is further proved that "share nomination" is not a unique product of our country market,especially in the form of "voting trust",which originated in American countries,is essentially a form of shareholding.While it will not arouse special supervision vigilance and attention in those countries,because of the loose regulation idea and the emphasis on market self-discipline.Therefore,it is necessary to make a judicial review or normative analysis of the regulatory provisions before determining the validity of the share nomination.Secondly,from the theoretical level,the "share dichotomy" theory,which is gradually rising and being welcomed by practice,puts forward the idea that the benefit right and the common benefit right can be divided,which further proves that the share nomination is not contrary to the concept of corporation law,even conform to the development trend of modern corporation law.Therefore,it is absolutely unnecessary to deny the share nomination from the aspect of existence and validity,even if it is not encouraged.In order to facilitate supervision,banning is contrary to the demand of realistic development.Finally,by defining the independence of commercial judicial thinking,which is independent of civil trial thinking and administrative supervision thinking,this thesis further emphasizes that the every part of legal system has its own tasks,and the commercial law validity should be characterized by "freedom of contract","trust protection" and other principles of private law,as for the realization of regulatory purposes can be achieved through a strong enough administrative punishment,and in the theory system of contract law,the value of "transaction security" can be balanced through “Enforceability” theory of the "effect" of contract.In summary,on the basis of defining the tendency of basic value,and then applying the principle of proportion,we can get the "effective principle" in determining the validity of the irregular share nomination.In the first chapter,the second instance judgment of the case of "Baopei corp.v.Yurun corp." is the most consistent with the point of view put forward in this thesis.The end of this thesis are some other thoughts,put forward the hope to provide some solving thoughts of determining the validity of the irregular commercial contract through this small proposition of the thesis,and reiterates once again the researchers of private law on the legal perspective of the commercial society,especially in the financial market,should concentrate on more important values.That is to say,the protection of freedom of contract and the protection of the interests of trust should be maximized within the task of private law,and never should be how to limit the prohibition of a certain existing business model.