How to referee equity holding dispute cases
09:58, August 01, 2023 Source: "China Social Sciences", August 1, 2023, Issue 2703 Author: Ma Junyan

Equity holding,Also known as hidden capital、Covering the name。Agreement around the equity agency agreement,Standing in front of the stage is the name shareholder,Also known as the shareholder of the famous name,That is the shareholder roster、Shareholders of the publicity of industrial and commercial registration; the actual investor hidden behind the scenes,Also known as anonymous shareholders,Investors who actually contributed but have not been publicized by the outside world。equity holding a unique tool value,The improvement of its relevant legal system for stimulating market vitality、Enhance investment confidence、Optimized business environment is significant。However, in judicial practice,referees on the dispute of equity agency are mostly controversial,This article is based on the classic jurisprudence of the Supreme People's Court (hereinafter referred to as the "Supreme Court") as the research object,Try to sort out the focus and judicial view of such disputes,Roughly attributed the dispute over equity as a category for five categories。

 Bet365 app download Such cases usually review the following two aspects: on the one hand,Must determine whether the parties form an equity coordination meaning。In the Liu Jing case、Wang Yun's case and other cases,Supreme Court pointed out,Establishment of equity relationship relationship,Determine agency consistency should be formed,It is best to have a written equity contract with a written contract。In the case of Xue Huizhen,Although the two parties have not signed a written contract,But according to the principle of high level of sexual standards and advantages,The possibility of ruling the legal relationship such as loans,The final determination of the existence of the two parties with agency coordination。On the other hand,Must review whether the content of the contract violates the compulsory regulations of laws and regulations,Whether it violates public order and customs。In practice,Damage of national interests、Equity Agreement Agreement on Public Interest,Most of the violations of the law of compulsory law。The controversy is that it does not directly damage the national interest、Scene of public interests,At this time, it is necessary to use public order and customs to make value judgment。In Ge Shao's copywriting,The company's legal regulations to avoid the number of shareholders not exceed 50,records the capital contribution of 1546 employees under the name of 8 shareholders; the Supreme Court determined that the behavior is a goodwill,Effective Agreement Agreement。In the China Textiles and Thai cases,The construction party does not have the corresponding qualifications,Objects through equity、Borrowing the qualification method to contract the project; the Supreme Court does not deny the effectiveness of the equity agency agreement,Instead, the principle of investment profit or loss is based on the protection of protection,Avoid distortions of the true meaning of the parties。

other,In a listed company or finance、Insurance and other industries,There is a large risk of being invalidated by the equity holdings of violations of regulations,Such cases involve financial order,Therefore, the results of the value judgment of the highest hospital are consistent。In Yang Jinguo's case,The equity holding agreement of the listed company is invalidated for "harm to the public interest of social"。In the Weijie Trust Case,Supreme Court, think,"Trust holding contracts" violated the prohibition of the "Administrative Measures for Equity Management of Insurance Companies" for the Insurance Regulatory Commission,It has the same legal consequences as directly violated the "Insurance Law",It will destroy the order of national financial management,Damage to the public interest bet365 Play online games of social,It should be found invalid "。In the case of Huahua Company,The Supreme Court determined that Chinachel Company violated the Mainland financial management system,Its commissioned investment behavior is invalid because of "covering illegal purposes in a legal form"。

  2,Shareholders responsibility dispute,Is the name shareholder be responsible for whether the shareholders should be responsible。The following two situations should be distinguished: For general equity holdings case,When the actual investor defects the flaw、When escaped the capital,Name that shareholders shall bear the corresponding responsibilities; when the company is liquidated,Name that shareholders are also liquidated obligations。In Chang Juying's case,"The party knows the fact that the facts of the shareholders are recognized,Even if its signature and seal are not what I do,Still bearing the legal responsibility of the shareholders "。In Wenjin's talent,Name that shareholders have not participated in actual business,The court believes that "does not fulfill the responsibility of shareholders 'supervision and liquidation obligations to exercise shareholders' rights,As a result, the company was canceled and unable to liquidate,Damage to the interests of the company's creditors,Responsibility for the company's debt "。For the Case of Capital,The named one is not a nominal shareholder in the strict sense,No need to bear the liability for capital。The behavior of ingenious capital contribution is due to the lack of meaning,It should be identified as invalid,That is, both the actor and the named person cannot obtain shareholders' qualifications。At this time, according to the "Supreme People's Court on the Application of the Company Law of the People's Republic of China" (3) "(3) (hereinafter referred to as" Company Law Interpretation 3 ") Article 28,The person who is an actor bears the corresponding responsibility for his error。

 third,Equity confirmation dispute,That is, whether the actual investor can confirm the qualifications of shareholders and change the registration。"Article 24, paragraph 3 of the Company Law Explanation,The actual investor in the Co., Ltd. shows that half of the other shareholders must be approved。The "Minutes of the National Civil Commercial Trial Conference" released by the Supreme People's Court (Fa [2019] No. 254) (also known as "Nine People's Ji") established a new referee rule,On the one hand, it corrects the irregular expression of the judicial interpretation of "more than half",On the other hand, it has relaxed the realic name of the actual investor -actual investor can prove that more than half of the other shareholders know the facts of their actual funding,And if the actual exercise of shareholders' rights has not raised objections。So,In judicial practice,There is a point of view that the actual investor shows the name as the transfer of the name of the equity。In the 5th issue of 2011, "Zhang Jianzhong's Confirmation of Yang Zhaochun's equity confirmation dispute",The Shanghai Jing'an District Court posted a notification in the company's office and mail notification to other shareholders,Requires other shareholders to provide a written reply opinion。After more than half of other shareholders agrees,The defendant should fulfill the corresponding equity change registration procedure。Although the Supreme Court affirmed the innovative measure of the court's active notice in the form of a bulletin case,The author thinks that this approach is questionable,The court jumps over the company's internal equity transfer and notification procedures,Direct confirmation of the actual investor's shareholder qualification,It is tantamount to Vietnam 庖。Except the above point of view,There are also different opinions in practice。In the case of Han Ting Company,Supreme Court, think,Actual investor showing the name is not the name shareholders transfer the equity to the actual investor,Instead of ending the contractual contract relationship between the two parties。

 fourth,Disputes of equity sanctions,is whether the punishment behavior of the name shareholders is valid。Article 25 of the "Interpretation of the Company Law",Name that the behavior of the transfer of equity of the shareholders can refer to the relevant provisions of the property rights of the "Civil Code",However, this contribution clause is not enough to solve the problem of judicial practice。Try a case,If a shareholder holds 40%,Among them, I hold 25%、15%holding the shares on behalf of others,now transfer 25%equity to the third person outside the company,The transferee knows that the previous description of the holding agreement,What is the effectiveness of the punishment behavior? Some opinion believes that the transfer behavior is invalid,Because the shareholders held by the shareholder, they have the same share and others,A total of more than 2/3 of the parties must be agreed by the common person,Therefore, the transfer behavior constitutes no right to punishment,​​The transferee does not constitute a goodwill。This view seems to make sense,But there is no doubt,Whether the equity is a common thing,Is its share divided? Can the equity -holding relationship be explained as the sharing?,Can it be obtained in good faith? Actually,According to the most simple sense of law,The shareholder transferred 25%of the equity that he originally held,It is difficult to be explained as no right to punish。In the Wang Yang case,Facing the situation of the name of the name shareholders' punishment,The court determines that the punishment behavior is no right to punish,The transferor obtains equity based on goodwill。But the author thinks,Shareholders recorded in the shareholder roster have shareholders' qualifications,The equity of its disposal is the right to punish,Applicable space that has no goodwill。mechanically applying a goodwill system,It is better to absorb the legislative spirit of its protection of transactions。

  Fifth,Dispute disputes of execution,That is, can the actual investor fight against the applicant。There are three perspectives in judicial practice。The first view is based on the principle of commercial appearanceism,I believe that the actual investor must not stop but execute。In the case of Guangcheng Company,The Supreme Court adheres to the "view of the contract,Looking for public announcements ",Internal relationships,Follow the true meaning of the parties;,According to the registered publicity content,It is recognized that the equity is enjoyed by the nominal shareholders。In Bailong Material、National Food Trading Center、Liu Yinglan、Wang Renqi and other objections to perform objections,Supreme Court Identification,When the name shareholders become the executed person because the shareholders fail to pay off the debt,The creditors of the nominal shareholders are the "third person" category of legal protection,Creditors are attributable to equity recorded in the registration of industry and commerce,I have the right to apply for compulsory execution of the equity。The second point is based on the protection of actual rights,It is believed that the hidden shareholders can observe but execute it after confirming the facts。In the case of Huaguan Company,The court thinks,The subject obtained by equity goodwill is limited to the third person with equity transactions with nominal shareholders,The principle of commercial appearanceism should be carefully applied to the creditors of non -equity traders,"If the actual rights belong to the equity of Huaguan Company to settle the debt of Chengcheng Company,It will seriously infringe on the legitimate rights of Huaguan Company "。The third point of view is considered,Can the actual investor block the execution? Determine according to the time formed by the acting behavior and creditor's rights。In the Huang Deming case,The Supreme Court believes that "the interests enjoyed by the creditors are dynamic interests,The interests enjoyed by the anonymous shareholders are static interests ",The principle of priority to protect dynamic interests,That is, "If the holding of the shareholding is formed first,then according to commercial appearanceism,The rights of creditors should be more prioritized; if the creditor's rights are formed first,There is no applicable condition for commercial appearanceism,The actual rights of hidden shareholders should be more prioritized "。

  (Author is an associate professor at the School of Law of Ningbo University) 

Editor in charge: Zhang Jing
QR code icons 2.jpg
Key recommendation
The latest article
bet365 live casino games

Friendship link:

Website filing number: Anxie 11010502030146 Ministry of Industry and Information Technology:

All rights reserved by China Social Sciences Magazine shall not be reprinted and used without permission

General Editor Email: This website contact information: 010-85886809 Address: 11-12, Building 1, Building 1, No. 15, Guanghua Road, Chaoyang District, Beijing: 100026