Study On The Legal Consequences Of Illegal And Void Shareholding Contracts

In the process of differentiating the validity of the shareholding contract,the principle of proportionality shall be applied and the invalidity shall be determined by Article 153(2)of the Civil Code.In the post-Civil Code era,there is no room for the application of the principle of non-refundable payment of unlawful reasons,and the nominal shareholders shall be compensated for the principal and interest paid by the actual contributors in accordance with Article 157 of the Civil Code.If the objective value of the shareholding is not sufficient to return the full amount of the investment paid by the actual contributor,the difference shall be dealt with in accordance with Article 157 of the Civil Code,which is tort liability,and the nominal shareholder shall only share in the loss of the depreciation of the investment if it constitutes a tort.In the event of an increase in the value of the shareholding,the determination of the ownership of the shareholding should take into account the values and logic of the organic law and the transaction law,and it is not appropriate to adopt a perspective of separation of the shareholding,where the personal and property rights of the shareholding are vested in the nominee shareholder.In the case of shares held on behalf of commercial banks and insurance companies,the question of attribution should be decided by the nominee shareholder or by mandatory delisting,taking into account the company’s wishes and the measures taken by the regulatory authorities.Although the nominal shareholders are entitled to the equity,they do not have the rightful basis to retain the interest,and the value-added interest belongs to the object of return,and their conduct constitutes unjust enrichment.A combination of factors should be used to achieve a reasonable distribution of interests between the parties and to achieve the balance of interests required.