On Effectiveness Of Entrusted Holding

The two-way expansion of China’s financial opening-up pattern shows China’s strong confidence and grandeur in entering global governance.With the deepening of China’s participation in global governance,legal governance at the national level should always meet the fierce challenges from the outside and withstand the special attention from the international community.At present,the international community has established a complete set of anti-money laundering standards,with the continuous expansion of related fields and increasingly complex contents,which has become an important international rule in the economic and financial field.In the international perspective of FATF anti-money laundering,the transparency of beneficial ownership implicit in corporate legal persons and legal arrangements is a practical problem that urgently needs the response of China’s financial and commercial legal system.Holding equity for others,an alienated form of equity investment derived from the traditional way of capital investment but flourished in the current financial innovation,has an endogenous logical connection with the beneficial ownership of the company legal person and legal arrangements.From the perspective of interpretative theory,the legal structure of equity holding should belong to the compound behavior structure of “burden behavior + disposition behavior” in the sense of legal behavior.In the identification of qualitative and legal relations,special attention should be paid to “three distinctions”.Firstly,the broad sense and narrow sense of entrusted equity holding should be distinguished between positive（active）entrusted equity holding and negative（passive）entrusted equity holding;The second is the difference between the entrusted equity holding contract and the entrusted equity holding relationship.The entrusted equity holding relationship includes both contractual and non-contractual relationships;The third is to distinguish the entrusted equity holding behavior and the entrusted equity holding relationship,so as to avoid the confusion between the two.Generally speaking,there is a fitting advantage between active entrusted equity holding behavior/relationship and trust behavior/relationship.For the determination of behavior effectiveness,we should comprehensively judge the effectiveness of entrusted equity holding as a combination behavior from two different dimensions of part and whole according to the situation.In terms of the scope of effectiveness,when the actual investor resists enforcement,the reasonable interpretation is that the scope of bona fide counterparties（the third parties）,who have trust interests in the appearance of equity publicity,is “trading counterparties + non-trading counterparties”,which should not be limited to trading counterparties.From the perspective of legislative theory,the legal governance of effectiveness related issues such as the confirmation of the effectiveness of entrusted equity holding and its invalid consequences is still inseparable from the measurement of basic values such as freedom and order,efficiency and security.It should not be limited to the one-way civil law thinking of private law autonomy or contract freedom,but should be systematically considered in the macro pattern of coordinating the implementation and evaluation of FATF international standards on anti-money laundering and anti-terrorist financing.China can consider establishing a centralized registration system of beneficial ownership suitable for the stage of China’s economic development,and include the right arrangement of equity trust into the scope of registration.Based on the legal effect directly produced by the publicity,the approach of being valid after registration can be adopted.This thesis is divided into five parts.The first part is the introduction,which summarizes the research background and research status at home and abroad,and summarizes the main research contents,research methods,main innovations and contributions of this thesis.The second part is the empirical investigation of the judicial determination of the effectiveness of entrusted equity holding,makes a statistical analysis of the data of the retrial judgment cases of the effectiveness of entrusted equity holding,and combs the positions of the retrial cases of the effectiveness of entrusted equity holding and the non-retrial but influential cases of the Supreme Court.The third part summarizes and expounds the difficulties of entrusted equity holding effectiveness in judicial recognition,mainly including the impact of nature judgment on effectiveness recognition,the core disputes of entrusted equity holding effectiveness recognition,and the standardization of public order and good customs as the bottom clause of effectiveness judgment,analyzes and discusses these key difficulties,and points out the main difficulties and challenges faced in judicial practice.On the basis of the previous discussion,the fourth part makes dynamic linkage and forward-looking thinking on the situation of international financial supervision in view of the current main problems and in combination with the integration background of FATF international supervision trend: paying attention to the system coordination of externalism and behavior essence,breaking through the abstract path dependence of effectiveness confirmation,and strengthening the Sinicization exploration of beneficial ownership registration system,further promote the characteristic governance of the effectiveness of entrusted equity holding in the context of Chinese law.The fifth part is the thinking of the exit mechanism after invalidation,and properly deal with the income generated during the holding period by establishing orderly invalid exit rules.The sixth part is the conclusion,which reviews and integrates the previous discussion to show the sincere expectation of this thesis for the beautiful vision of China’s governance of entrusted equity holding.