Research On Legal Issues Of The Shareholding Entrustment

In our commercial activities,shareholding entrustment is very common,and there are also many disputes arising from shareholding entrustment.Our current“Company Law” doesn't explicitly stipulate the issues of shareholding entrustment.The relevant regulations on the issues are initially scattered in the judicial documents of local courts.Based on the urgent need to resolve disputes over shareholding entrustment in practice,the Supreme People's Court issued the “Application of the Company Law(III)”,which unified the regulations of shareholding entrustment in some provisions.Although “Application of the Company Law(III)” has a certain degree of regulation on the issues of shareholding entrustment,it seems that it focus too much on solving the practical disputes,and ignores the internal logic of the law.According to the expressions of Articles 24 and 26 of “Application of the Company Law(III)”,the Supreme Court tends to hold that the nominal shareholder is entitled to shareholder qualification;but Article 25 of “Application of the Company Law(III)”introduces the bona fide acquisition system in the Property Law,which seems to indicate that the Supreme Court tends to recognize that the nominal shareholder's disposition of equity is unauthorized.From this,It seems can be concluded that nominal shareholder does not have ownership rights and are not shareholders of the company,which subverting the basic attitude defined in article 24 of “Application of the Company Law(III)”.The ambiguity and conflict of judicial interpretation makethe identification of shareholder qualification and equity ownership unclear in the case of shareholding entrustment,which also make the judges have different interpretations and applications of the provisions,so that the judicial decisions are not uniform sometimes.It should be said that the Supreme Court is swaying in dealing with the issues of shareholding entrustment.On the one hand,the Supreme People's Court wants to separate the shareholding entrustment relationship constructed by the shareholding entrustment agreement from the “shareholder-company” relationship,and tends to recognize the nominal shareholder's shareholder qualification and shareholding ownership;on the other hand,the Supreme Court does not Willing to let the rights of actual contributors be “over-infringed”,in order to balance the interests between actual contributors,the nominal shareholder and the third party,introduce a system of bona fide acquisition,resulting in the “results” of the nominal shareholder not enjoying shareholder qualification and ownership.The legal issues about shareholding entrustment are very complicated,and the most important issues are the identification of shareholder qualification and equity ownership.Clarifying the shareholder qualification and equity ownership under the shareholding entrustment,the equity transfer disputes between the actual contributor and the nominal shareholder can be solved.As for the identification of shareholder qualification and equity ownership,the current academia mainly has three views:theory of form,substance and compromise.In addition,some scholars put forward the theory of equity dichotomy innovatively.Besides,the shareholder qualification and equity ownership under the shareholding entrustment are also closely related to the basic structure of the shareholding entrustment relationship.Therefore,the study of the content and nature of the shareholding entrustment contract is of great significance to further explore the issues of shareholding entrustment.As for the nature of the shareholding entrustment relationship,the academia has different views such as the anonymous agency relationship theory,the equity trust relationship theory,the partnership and the common relationship theory,and the normal contractual relationship theory etc.There are merits in various opinions,but there are also problems of one kind or another.This thesis will focus on the nature and content ofshareholding entrustment relationship,as well as the determination of shareholder qualification and ownership,and on this basis,briefly discuss the effectiveness of the disposition of the equity of the nominal shareholder,in order to make some contributions to the research on legal issues of the shareholding entrustment.