On The Rescission Of The Equity Holding Agreement

Equity entrustment agreement is the main form of legal act of equity entrustment.Therefore,this paper takes the termination of equity entrustment agreement as the research object to explore the legal issues related to the termination of equity entrustment act.To explore the conditions and effects of rescission of entrustment agreement,it is necessary to clarify the legal nature of entrustment agreement.In practice and academic circles,there are controversies about the nature of agency agreement,including principal-agent theory,fiduciary relationship theory and anonymous contract theory.But this paper think that the generation agreement as the unknown contract compared with other view may be more appropriate,because equity generation hold agreement has the characteristics of legal relation of complexity,it also involves in the field of company law regulations,commissioned by a single contract or trust contract and can't explain well and deal with the dispute of equity generation by a behaviour.The identification of agency agreement as anonymous contract not only conforms to the current legislative model of the integration of civil and business in China,but also respects the principle of freedom of contract to a great extent.Meanwhile,it can realize the effective connection between the Contract part of Civil Code and the Company Law,and also provide a broader space for the legal application of agency agreement.The termination of the equity entrustment agreement based on the nature of the unnamed contract shall follow article 467 of the Civil Code on the application of the law on the unnamed contract,that is,"apply the special rules first,then exhausted the general rules,and then refer to the most similar contract provisions." However,the Company Law and the Judicial Interpretation of The Company Law(III)do not have clear provisions on the legal nature,ownership and termination path of equity entrusting,so it enters the discussion in the contract section of the Civil Code.In essence,it is a kind of contract,which should be directly applicable to the provisions of the General Rules on termination by agreement and legal termination,which is also the embodiment of full respect for the autonomy of will of both parties.However,in the "Provisions on the Most Similar Contract by reference",this paper considers that the contract type most similar to entrustment agreement is entrustment contract.However,compared with the traditional entrustment contract,the trust factor is greatly weakened,and the contract has compensatory characteristics,and is subject to the constraints of the company law rules.Therefore,the termination of equity entrustment agreement cannot directly refer to the provisions of arbitrary termination of entrustment contract in civil Code.Equity entrustment agreement is a continuing contract,which does not have retroactive effect in principle.The effect of termination of entrustment agreement should also consider the true expression of intention of both entrustment parties and the restrictions of company law.The effect of termination by agreement shall be freely agreed by the agent and the legal effect shall be discussed.In principle,the ownership of the equity shall respect the will of the actual investor,and the actual investor shall obtain the equity.In the case of obvious failure,the nominal shareholder shall continue to hold the equity,other shareholders shall buy back the equity and auction the equity.Secondly,in the case of changes in equity value and in the case of safeguarding the interests of both parties,the actual investor should bear the commercial risk by himself,and the actual investor should bear the profit or loss of equity appreciation or depreciation by himself.