The Judicial Approach Of Irregular Nominee Holding Of Listed Companies Under Strong Supervision

As a new type of investment,nominee holdings,have accounted for a large proportion of company equity disputes recently.According to the different types of companies,nominee holdings can further be distinguished from nominee holdings of limited liability companies,nominee holdings of non-listed companies limited by shares,and nominee holdings of listed companies.The current research on the theory and regulation of nominee holdings of corporate law in China is mainly focused on the nominee holdings of limited liability companies,and due to the relative lack of theoretical research and legal norms on nominee holdings,especially on listed companies,in reality,the concept of equating the various types of nominee holdings with the holding of shares of the limited company is quite popular,and conflicts in cases often occur.The question of whether or how to supervise the nominee holding of listed companies is also fiercely debated.It has become one of the important issues urgently needed to be studied and resolved in the company law and securities law.At present,when there are still many problems in the nominee holdings of limited liability companies,the problem of nominee holdings of listed companies is even more turbulent.Listed companies are open and have many regulatory requirements,which is different from the nominee holdings of limited liability companies.The nominee holdings of listed companies are generally irregular,such as the regulatory requirements of "clearequity" and "truthful disclosure" raised during the listing process,which reflect the values and expectations of supervision.In the process of listing approval by the CSRC,companies with the issue of nominee holdings cannot successfully cross the market without properly cleaning up.However,under the influence of the traditional commercial law trial logic,under the system of dichotomy of effectiveness,in judicial practice,as the rules belong to departmental rules rather than mandatory provisions of laws or administrative regulations,the court usually affirm the agreement of irregular nominee holdings invalid.The financial risks brought by financial innovation are increasing,which requires strong supervision.In this background,the relationship between financial trials and regulatory rules has changed.The Supreme Court changed its thinking in the past and opened a precedent for the invalidation of the agreement that “violates the basic rules of clear equity and truthful disclosure and damages the public interest”.Searching and sorting the relevant judgment documents,we can find that the judicial practice currently deals with the problem of irregular nominee holdings in three ways,which reflects the court's three different attitudes towards the regulations entering the field of private law.Pay attention to the reasons for their differences,on the basis of discovering problems,systematically sort out the logic of the court's trial,and express views on how the court will choose the path during the specific trial to enrich and promote the trial practice,which also responds to the current special background of the times.In addition to the introduction and conclusion,this article can be divided into four chapters.The first chapter serves as a background.First,it introduces the definition and characteristics,types and causes,norms and problems of nominee holdings.Second,it analyzes the unique difficulties of the listed company's nominee holdings during the trial process compared to the limited liability company,that is,the particularity of the listed company's nominee holdings —— the characteristics of capital integrity and publicity,strict regulatory requirements and higher degree of harm,the theoretical obstacles under the framework of judicial interpretation and the new challenges brought by the background of strong supervision,which indicate that the listed company faces greater challenges in the judicial trial process than the limited liability company.The second chapter focuses on the current and common judicial status of irregular nominee holdings of the listed company and summarizes the different trial paths of the court.First of all,it combs the specific types,claims and trial pattern of the listed company's nominee holdings lawsuits,and finds that the current research focus of cases of nominee holdings under strong supervision is the irregular nominee holdings which is very serious.Secondly,it sorts out the three different paths from the current judicial practice for hearing such problems.According to the degree of impact of regulations on the judiciary,three paths can be divided into: regulations do not affect the effectiveness of the contract,regulations affect the performance of the contract,and regulations affect the effectiveness of the contract.This reflects the change in the degree of judicial autonomy restrictions under strong supervision,and the different arrangements for ownership of equity,investment equities,etc.also reflect the different degrees of protection to the actual investor's rights and interests.The third chapter focuses on analyzing and exploring the logical differences on the trial of listed companies' irregular nominee holdings under strong supervision,and on the basis of it,expresses opinions on which path the court shall choose in specific trial practice.Start with the structure of Article 24 of Judicial Interpretation III,and then,in the aspect of the nature and effectiveness of the agreement,analyze the differences of practice to comb the court's trial patterns and explore the problems reflected by the inherent logical differences.Ultimately,with regard to the choice of path,under the requirement of strong supervision,the court should take path one in principle,which is recognizing the autonomy of the parties and the validity of the contract.However,considering that the nominee holdings of listed companies itself is irregular,it is necessary for the court to respond on whether the holding agreement “damages public interest and becomes invalid" on the basis of specific analysis and argumentation of the case.If the nominee holding is to circumvent some prohibitive and restrictive regulations or has other illegal intention,even if the holding contract is not affirmed invalid,from the perspective of value measurement,the court can learn from path two,which recognizes that the contract is valid,however,as the identity requirements cannot be met,there is no legal investment relationship,thus denying the existence of a legal nominee holding relationship to limit the performance of the contract.Chapter 4 puts forward some suggestions on improving the justice systematism of irregular nominee holdings.First,from the perspective of system improvement,it is necessary to expand the scope of application of judicial interpretation of nominee holdings,and clarify related concepts,distinguish different types of holding.Second,clarify the judicial discretion,which requires in principle affirming irregular nominee holdings effective,strengthening the application of "social public interest" clause and determining the ownership of equity under the listed company's nominee holdings.Finally,in promoting the benign interaction between justice and supervision,it needs to reinforce the connection between financial justice and financial supervision on the premise of carefully confirming the boundary between them.