Study On The Identification Of Shareholders’ Qualification Of Actual Investor In The Case Of Shareholding Entrustment In Limited Liability Companies

As a more common commercial transaction,the reallocation of the rights and obligations of the parties in respect of the held equity has resulted in the phenomenon of "separation of name and reality",which has caused a lot of disputes and difficulties in practice.At present,only the <Provisions of the Supreme People’s Court on Several Issues concerning the Application of the Company Law of the People’s Republic of China(III)> regulates the confirmation of the shareholders’ qualification of the actual investor in the disputes of proxy holdings,while the <Notice by the Supreme People’s Court of Issuing the Minutes of the National Courts’ Civil and Commercial Trial Work Conference> and the relevant adjudication guidelines issued by the provincial and municipal high people’s courts also provide guidance for the courts to hear the difficult issues in the disputes of proxy holdings.However,the solidified contract law thinking and the unresolved "paragraph 3 dilemma" in the legislation and judicial status quo have already brought uncertainty to the trial practice and the protection of the interests of the actual investor.In principle,the existing legislation affirms that the actual investor is entitled to investment rights and interests,and exceptionally stipulates that the actual investor is entitled to shareholder status,and proposes a comprehensive standard and a standard for distinguishing between internal and external relationships for determining whether the actual investor is entitled to shareholder status.The current judicial practice mostly follows the provisions of Article 24 of the <Provisions of the Supreme People’s Court on Several Issues concerning the Application of the Company Law of the People’s Republic of China(III)> and the guidelines of Article 28 of the <Notice by the Supreme People’s Court of Issuing the Minutes of the National Courts’ Civil and Commercial Trial Work Conference>,which states that when the actual investor can prove that "there is a consensual shareholding relationships + actual capital contribution + more than half of the other shareholders agree or actually exercise the rights of shareholders",he or she can be deemed to have the qualification of shareholders.The path also follows the comprehensive standard and standard for distinguishing between internal and external relationships.However,there are still controversial issues,such as some court decisions insist on the need to prove the existence of a written proxy agreement in order to determine the existence of a consensual shareholding,confusing the actual exercise of shareholders’ rights with participation in the company’s business management,and using the actual capital contribution as the primary factor for confirming the shareholders’ qualification of the actual investor.At the same time,the established adjudication path also fails to clarify the boundaries of the application of appearanceism and intentionalism.At the theoretical level,besides according to the shareholders’ qualification elements to determining the shareholders’ qualification,it also includes according to the nature of shareholding to determining the shareholders’ qualification,which is not universally applicable,and there is also a transplantation dilemma in the relevant legislation system outside of China.Therefore,from the perspective of "how to obtain shareholders’ qualification when a civil subject has not yet become a shareholder",we explore the attribution of shareholders’ qualification in the form of the natural state,and extract "the civil subject has the intention to obtain shareholders’ qualification" and "the company recognizes the civil subject to obtain the status of shareholder" from the various ways and means to obtain shareholders’ qualification as two necessary elements to build the "obtain shareholders’ qualification standard".In the discussion of the natural state of shareholders’ qualification,when the actual investor meets the "obtain shareholders’ qualification standard",it can be exceptionally recognized to have the shareholders’ qualification.First of all,we should distinguish whether there is a legal and effective relationship of shareholding;secondly,we should determine whether the actual investor has the intention to obtain the qualification of shareholders according to the act of capital contribution and the actual exercise of shareholders’ rights;finally,we should determine whether the actual investor has obtained the company’s approval according to the different ways of recognition of the actual investor under different types of shareholding.In addition,the company’s will specifically expressed as the will of the shareholders,that is,the company’s approval specifically expressed as the approval of the shareholders,the majority resolution rules should be used to facilitate the company through the majority of the shareholders’ intention to form a decision on behalf of the company’s will,while the company’s articles of association as a carrier of corporate autonomy and shareholder autonomy,should allow the articles of association to stipulate otherwise whether the actual investor can become shareholders.And when the actual investor can not obtain the company’s approval,should imposes the constructive trust between the actual investor and nominal shareholder,the actual investor can apply to the registration authority for registration of the constructive trust,to achieve the marking of rights,to effectively protect the legitimate rights and interests of the actual investor.