Research On Equity Transfer System Of Nominal Shareholders

In the context of the rapid development of the market economy,Share-holding entrustment is widely used in the commercial field as one of the investment methods.Due to the concealment of share-holding entrustment,when the nominal shareholder violates the agreement and transfers the entrusted shareholding without authorization,the third party is often unable to detect the true ownership of the shareholding,which leads to disputes.Considering the nominal shareholder has the right of legal justification appearance,in order to protect the legitimate rights and interests of the third party,The Judicial Interpretation of Company Law(Ⅲ)creatively introduces the system about acquisition in good faith in traditional civil law into it.Undoubtedly,The Judicial Interpretation of Company Law(Ⅲ)provides a legal basis for the settlement of disputes over the transfer of entrusted shares in judicial practice.However,there have been legal contradictions between the relevant laws and regulations of this judicial interpretation,which has led to a logical dilemma in the application of the acquisition in good faith.In addition,over the years,the judicial interpretation has not responded to the key issues of the system about entrusted equity transfer,such as the legal nature of entrusted shareholding and the identification of shareholder qualifications.,and the protection of the rights and interests of relevant subjects is not in place,resulting in the lack of uniform adjudication standards in judicial practice and the failure to effectively resolve judicial disputes.In contrast,the relevant legislation outside the territory is more clear.On the one hand,most countries affirm the presumption of rights of the shareholder register on the basis of following the principles of commercial law appearance and publicity,and recognize that the nominal shareholder is qualified as a shareholder and bears external responsibilities.On the other hand,Anglo-American law countries use the equity trust system to regulate the share-holding entrustment,which can effectively avoid related disputes.These two aspects are worth learning from our country’s legislation.Through the analysis,the following measures can be taken to improve the equity transfer system of nominal shareholders in China:First,the equity dichotomy theory is used to amend the equity acquisition in good faith system.According to this theory,the property rights and personal rights in the equity are separated and and the difference in the nature of the rights transferred by the nominal shareholder is used to determine whether it constitutes a disposition without right,so as to remedy the contradictions between the relevant laws in judicial interpretation.Second,the share-holding entrustment relationship is defined as the trust relationship and the trust Law is used to regulate the share-holding entrustment relationship.In addition,on the basis of the compromise theory,the internal and external relations of share-holding entrusting are redefined and the qualification of shareholders is determined according to the different internal and external relations.At the same time,we should improve the formal requirement system of the combination of shareholder register and industrial and commercial registration and establish a unified registration system of shareholder qualification identification.Third,strengthen the protection of the rights and interests of the third party and the actual investor,including:(Ⅰ)Refine and improve the system of acquisition in good faith of entrusted equity.(Ⅱ)Establish a special share-holding entrustment contract system.Firstly,it is necessary to clarify that the contract of share-holding entrustment is a formal contract,so as to avoid oral agreements between the two parties of share-holding entrustment,which may lead to difficulties in defending the rights of actual investors.Secondly,the content of the share-holding entrustment contract should be standardized and the rights and obligations of both parties should be clarified.Finally,both subjects of the share-holding entrustment should disclose the relevant matters to the company after signing the contract,thus safeguarding the security of commercial transactions.