Research On The Issue Of Shareholding Entrustment From The Perspective Of Rechtsschein Theorie

With the rapid development of market economy,more investors choose the investment way of equity holding.The separation of name and real ownership caused by entrustment is also the main cause of disputes.Rechtsschein Theorie is applicable to the situation where the appearance of facts deviates from the real ownership.From this point of view,there is a natural fit between the appearance doctrine of business and the settlement of the dispute of equity entrustment.As a kind of interest balance rule,it can uphold the value orientation of fairness and justice to solve problems,and is consistent with the commercial relationship to pursue profit,transaction security and transaction efficiency.At present,the disputes on entrustment of equity focus on the disposition of entrustment of equity,investment responsibility and compulsory execution.The Company Law itself lacks provisions,and later the Interpretation of the Company Law(III)has made explanatory provisions on some issues.Most of them are guided by the Rechtsschein Theorie,respecting the Rechtsschein and affirming the nominal shareholders’ qualification.However,the system of bona fide acquisition is contrary to this idea.It implies that legislators should be vigilant and guard against moral hazard when applying Rechtsschein Theorie.Therefore,it is necessary to delimit the reasonable scope of application,so that it can be revitalized in the settlement of the dispute of enacting ownership.Insisting on Rechtsschein to Improve other provisions.It is recognized that the nominal shareholder has the qualification of shareholder externally,and the transferee is the successor to the acquisition of the entrusted equity.When the creditors of the company require the nominal shareholders to bear the capital contribution liability due to the Rechtsschein,the liability bearing path should be broadened.Equity entrustment as a special disclosure right of the principal-agent relationship can be applied here,so as to break the Rechtsschein that the actual investor from behind the scenes to the stage.In the internal responsibility sharing,it should not only stipulate that the actual investor should bear the ultimate responsibility.The execution procedure is the area where the interest conflict between the actual investor and the third party is the most acute.When the law stipulates that the "third party" is about to turn to the "bona fide counterpart",the scope of trusting the interested party must be clearly defined,and the non-trading third party should be protected in a limited way,rather than excluded.