| The phenomenon of holding shares by proxy is not only reflected in the holding of shares by proxy in limited liability companies,but also in the companies to be listed in the stock limited companies.Because the phenomenon of holding shares by proxy is common in the companies to be listed,but the legislation is not clear about its effect,resulting in the court's different determination of its effect in judicial practice.The characteristic of the company to be listed is that its share holding agreement may be in the form of agency,trust and partnership.The reasons for the formation of its holding shares on behalf of others can be divided into two categories:evasive and non evasive.The laws involved include the civil code,the company law and its judicial interpretation,as well as the securities law,the trust law and the relevant ministerial regulations that regulate the financial market.In judicial practice,there are two views on the validity of the agreement of holding shares on behalf of the People's Republic of China.The theory of validity protects the freedom of contract between the actual investor and the nominal shareholder from the perspective of private law autonomy,while the theory of invalidity protects the social interests from the public order and good customs.Both of them have the problem of making the validity of the stock holding agreement of listed companies unique.Based on the analysis of practical cases,this paper holds that the validity of the stock holding agreement should be affirmed under specific circumstances.Based on the number of shares held by proxy,the formation time of shares held by proxy and the reasons of shares held by proxy,this paper analyzes the directness of its infringement on the interests of a wide range of investors.From the directness of tort causality in the securities market,we can judge whether it belongs to the adjustment scope of public order and good customs,and analyze the effectiveness of the agreement. |
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