The third interpretation of the Company Law clearly recognized the legal effect of the original legislative intent. This interpretation was adopted by the the Supreme People's Court Municipal Judicial Committee at its meeting1504th on February 6th, 20 10, and shall come into force on February 6th, 2010.
Prior to this, in fact, there have been a large number of acts of holding shares on behalf of others. In this regard, there have been some relevant regulations to regulate the holding behavior.
For example, in 2008, the Guidelines for the Operation of the Board of Directors of Insurance Companies (Bao Jian Fa [2008] No.58), in 2007, the Notice of the State Administration of Foreign Exchange on Foreign Exchange Management Issues Concerning Domestic Residents' Financing and Return Investment through Overseas Special Purpose Companies (Bao Jian Fa [2005] No.75), and even in 2006, the China Securities Regulatory Commission regulated the establishment of fund management companies and the disposal of equity.
All the above legal norms show the objective existence of stock holding behavior and the corresponding normative measures for stock holding behavior.
However, it can also be seen that the shareholding in the commercial field is an objective phenomenon, and the basis for adjusting and standardizing it is limited to departmental regulations or normative documents. Once modern holding disputes arise and involve judicial trials, there is no clear legal basis in terms of laws, administrative regulations and judicial interpretation, which also leads to a vacuum between objectively existing behaviors and disputes and the current judicial basis at that time.
Therefore, it is necessary to regulate and adjust the shareholding behavior at the legislative level.
However, the legal value in the commercial field is different from that in the civil field. The commercial field pursues investment and operational efficiency and encourages transactions. Especially at that time, we were faced with an objective fact that a healthy, orderly, flexible and free business environment was urgently needed.
Although there are inherent risks in shareholding objectively, after weighing the advantages and disadvantages, shareholding has great advantages in improving investment willingness, adopting flexible investment methods, and even in equity incentives and improving corporate governance efficiency.
Therefore, the Supreme Court issued the third interpretation of the Company Law, which clearly recognized the act of holding shares on behalf of the company at the level of judicial interpretation. Although there are still some disputes about the legal origin of judicial interpretation, it has played a great guiding role in the handling of such disputes in judicial trials, and made clear the direction of trial and legal attitude.
Advantages and disadvantages of holding shares on behalf of the company Since we are talking about holding shares on behalf of the company, let's introduce the advantages and disadvantages by the way, which may not only be comprehensive, but also be shared:
First, the positive role.
1. Avoid identity restrictions and respect individual investment wishes.
In the Company Law and other relevant laws, there are relevant legal restrictions on the identity of shareholders and the subjects engaged in profit-making activities. However, the way of holding shares on behalf of others and actually controlling behind the scenes not only circumvents the legal restrictions, but also realizes the investment purpose.
Of course, in some special circumstances, this can not be said to be its positive role. Law-abiding is the first principle, and it is absolutely not allowed to circumvent the legal provisions and achieve its illegal purposes.
However, some investors do not want to "show their faces" and their names are not willing to be publicized on shareholder information. Holding shares is also a good choice.
Investment is voluntary, flexible and anonymous, which objectively expands the scope of investors.
2. Break the limit on the number of shareholders.
For example, the company law stipulates that the maximum number of shareholders in a limited liability company is 50, but in reality, the number of people who may have the same investment will far exceed this number. In addition to choosing to set up multiple companies, each company will realize the same investment intention as corporate shareholders.
This problem can also be well solved by holding shares on behalf of others.
3. Equity incentives
In order to motivate employees, some companies have many incentives to choose from. In the long run, it is undoubtedly an extremely effective long-term incentive way to bind the company's development interests with employees' personal interests.
But there are also various problems in reality. For example, once employees terminate their labor relations with the company, they are still shareholders of the company, which will inevitably have some impact on corporate governance and even form a corporate deadlock.
In view of this, employees can give the corresponding company equity through agreement during their employment, but they do not register for industrial and commercial changes, and others hold the equity on their behalf, which not only plays the role of equity incentive to a certain extent, but also avoids future equity disputes.
4. Improve the efficiency of corporate governance
The company's major decisions need to be voted at a general meeting of shareholders. Less shareholders is a good thing, and the convening cost is not high. And it is not easy for those shareholders who have a large number of shareholders and live in various places to have a meeting.
However, the Company Law clearly stipulates the number of shareholders attending the meeting and the voting method. The above problems will indeed have a negative impact on corporate governance efficiency to a certain extent.
Through the way of holding shares on behalf of others, some people's shares are held by trusted people. Before the meeting was held and voted, simple communication and clear opinions were made, and only a few people participated in the voting, which greatly improved the efficiency of the meeting and voting.
5. Attracting investment and enhancing the influence of the company.
The operation of the company is inseparable from capital, and it is inseparable from cooperation. In order to attract more investment, enhance influence and increase cooperation opportunities, some companies will also make a fuss about nominal shareholders.
For example, it is also a good idea to take some influential people in the industry as nominal shareholders of the company and give them some remuneration or even dividends, while the actual management and decision-making power is exercised by anonymous shareholders.
Of course, personally don't like this way. Especially for the counterparty, it is easy to create the illusion of the other party's strength and make a wrong risk assessment. In the context of honest business, strictly speaking, it can not be regarded as the positive role of agents.
6. Other functions
In addition to the above, the role of holding shares can also be used to avoid the restrictions on the shareholding ratio (for example, the relevant laws and regulations or the company's articles of association limit the shareholding ratio of a single shareholder), to avoid related transactions, non-competition restrictions/prohibitions, and even to strengthen the control of a certain shareholder (on the surface, the shareholding ratio is relatively balanced, but in fact, a shareholding agreement is reached, and shares are concentrated in disguise). ......
But these functions, in fact, individuals do not like, and do not quite agree. After all, the purpose of holding shares is to encourage transactions, encourage more investors to participate in economic development, and create an honest, healthy and orderly business environment, rather than deliberately evading legal restrictions, or even using this seemingly legal form of holding shares to cover up its illegal purposes.
Second, the risk of holding.
Let's go back to the question here. Why is there a thoughtless problem in holding shares on behalf of shareholders? The fundamental reason is that holding shares on behalf of shareholders will have inherent risks to varying degrees, not only for nominal shareholders and dormant shareholders, but also for creditors of the company and shareholders.
And this kind of risk, only through a paper agreement is difficult to avoid. Let's share some of these risks. Of course, it is only a personal summary, not necessarily comprehensive. Please forgive me.
1, the risk of nominal shareholders, that is, equity holders.
Nominal shareholders are not the actual owners of the shares they hold, nor do they undertake the corresponding shareholder obligations according to the agreement of agency. But this is not without risks.
According to the relevant provisions of the Company Law, the company has the right to require shareholders to fulfill their capital contribution obligations in accordance with the articles of association, and the company's creditors also have the right to require shareholders who have not fulfilled their capital contribution obligations to pay off the company's debts within the scope of their subscribed capital contribution.
Therefore, for nominal shareholders, the primary risk lies in the capital contribution risk brought by anonymous shareholders' failure to fulfill their capital contribution obligations. According to Article 3 of the Company Law, a nominal shareholder cannot defend himself on the grounds that he is only a nominal shareholder rather than an actual investor.
Although the nominal shareholders are given the right of recourse against the anonymous shareholders after assuming the above responsibilities, it is conceivable that since the anonymous shareholders cannot fulfill their capital contribution obligations as agreed, their actual solvency can also be imagined. Objectively speaking, the nominal shareholder is equivalent to a "guarantee" for the investment obligation of the anonymous shareholder. Especially for some unpaid shareholding behaviors, the risks and benefits of nominal shareholders are obviously unequal.
2. Risks of dormant shareholders/actual investors
Compared with nominal shareholders, dormant shareholders actually face greater risks, especially the moral hazard and personal debt risk of nominal shareholders.
As the actual investor and obligee, dormant shareholders do not have nominal shareholder status, and the most important dividend and voting rights of shareholders are only bound by a paper agreement and will be exercised on their behalf.
However, when faced with huge interest temptation, nominal shareholders are likely to infringe on the interests of anonymous shareholders. This is an inherent moral hazard. Although anonymous shareholders can still pursue the responsibility of nominal shareholders through agreement, actual implementation is a problem.
Moreover, the subsequent impact of the unauthorized use of voting rights by nominal shareholders on the company's behavior is more difficult to eliminate.
Another risk is the personal debt risk of nominal shareholders. After all, the equity is registered in the name of the nominal shareholder, and its creditors have reason to believe that the equity is the personal property of the nominal shareholder.
Therefore, the equity will face the risk of being frozen or executed by the creditors of the nominal shareholders. Moreover, nominal shareholders are also very likely to dispose of their shares without authorization, such as setting pledge guarantee for them and even taking loans.
Even if the actual investor has the right to investigate the nominal shareholder's liability for breach of contract or compensation, it is hard to say whether the loss can be made up.
There's another big problem. Many anonymous shareholders have such a misunderstanding that they can terminate the equity holding agreement at any time, disclose their actual shareholder status and directly participate in corporate governance.
It's not that simple. There is no problem in canceling the consignment agreement. After all, it is essentially a commission contract. As the principal, unless otherwise agreed, the anonymous shareholder has the right to revoke it at will.
However, even if the entrustment agreement is dissolved, it does not mean that anonymous shareholders can obtain shareholder status. According to the third paragraph of Article 24 of Interpretation III of the Company Law, if the actual investor requests the company to change its shareholders, issue a capital contribution certificate, record it in the register of shareholders, record it in the articles of association and register it with the company registration authority without the consent of more than half of the other shareholders of the company, the people's court will not support it.
Simply put, whether an anonymous shareholder can become famous depends not only on the dissolution of the entrustment agreement, but also on the wishes of other shareholders of the company. (There are also provisions in the minutes of nine people, so I won't go into details here. )
3. Creditor's risk
Why raise the risk of creditors?
After all, the shareholding behavior directly affects the actual shareholder composition of the company, and then has a direct impact on corporate governance and commercial transactions. When a counterparty conducts a transaction with a company, the composition of the company's shareholders will directly affect its evaluation conclusion when evaluating the transaction risk.
From this point of view, there is a great degree of risk correlation between the holding of equity and the counterparty of the company's transaction. Once a company generates foreign debts, it will directly affect the interests of its creditors.
The solvency of a company depends not only on the company's property, but also on the capital contribution of shareholders. When the company can't pay off its debts, the creditors of the company do have the right to ask the shareholders who have not fulfilled their capital contribution obligations to bear the responsibility of paying off their debts within the scope of their capital contribution. However, the current regulations and viewpoints do not clearly stipulate that the company's creditors can ask the actual investors to bear this responsibility.
Moreover, the views of theoretical circles are not consistent.
This leads to the company's counterparties trading with the company based on their trust in the actual investors. When the company is in debt, it is difficult for its creditors to ask the actual investors to bear the corresponding responsibilities. The essence is that the actual investor holds the trading risk with equity and passes it on to the company's creditors.
This is not the market order we want to pursue.
In short, equity is the product of economic development. Since it exists, it shows that there is such a demand in the market. Although there are some inherent or uncertain risks, blind prohibition does not conform to the values pursued in the business field.
Only through more perfect supporting measures and laws and regulations can we give positive guidance and make up for mistakes. As for whether it was thoughtless at that time, it cannot be generalized.
After all, one of the characteristics of the written law system is that the legal provisions lag behind the social and economic development. With the problems in development, the legal system will be constantly revised and adjusted.
But in any case, it is an eternal principle to operate with integrity and strictly abide by the contract.
Please correct me if there is anything wrong. )