With the development of the economy and the increasing frequency of business activities, equity nominee holding, as a special way of equity arrangement, has gradually been widely used in business practice. However, nominee shareholding also brings a series of legal issues, which require in-depth analysis of the relevant laws. This article will focus on the concept, causes, legal relationship, legal effect and risks of equity entrustment, in order to provide some useful references for relevant persons.
1. The concept and reasons for equity holding.
Nominee shareholding refers to a form of equity expression in which the actual investor (i.e., the anonymous shareholder) is inconsistent with the nominee shareholder. The actual contributor contributes capital and is registered with the industrial and commercial department as a nominee shareholder, but the actual contributor is not a shareholder of the company. The occurrence of this phenomenon of equity holding is mainly due to the following reasons:
1.For the purpose of circumventing the law. Some investors choose to avoid legal risks by holding shares on behalf of others due to the restrictions or prohibitions prescribed by law. For example, some countries have restrictions on foreign investors' investment in certain industries or sectors, and some investors circumvent these restrictions by holding shares on behalf of others.
2.Protect personal privacy or trade secrets. For the protection of personal privacy or trade secrets, some investors choose to hold shares on behalf of others to avoid the disclosure of personal information or business information.
3.Other reasons. In addition to the above reasons, there are some other factors that may lead to the emergence of the phenomenon of nominee shareholding, such as the active nominee shareholding of nominee shareholders, and the nominee shareholding in the inheritance relationship.
2. The legal relationship of equity holding.
In the nominee shareholding relationship, the legal relationship between the actual investor, the nominee shareholder and the company is involved. Specifically:
1.The relationship between the actual contributor and the nominee shareholder. They usually sign an equity holding agreement to stipulate the rights and obligations of both parties. The actual contributor has the rights of the actual shareholder, while the nominee shareholder is responsible for holding the shares and exercising the relevant shareholder rights.
2.The relationship between the nominee shareholder and the company. The nominee shareholder is registered as a shareholder in the articles of association, the register of shareholders and the industrial and commercial register, so the company has reason to believe that the nominee shareholder is a genuine shareholder. Nominee shareholders have the right to exercise their shareholder rights and bear corresponding obligations, such as capital contribution obligations.
3.The relationship between the actual investor and the company. Since the actual contributor is not the registered shareholder of the company in the relevant documents, the company may not be aware of the identity of the actual shareholder. Therefore, the actual contributor cannot directly exercise the shareholder rights and cannot claim any rights against the company.
3. The legal effect of equity holding on behalf of the company.
There are different views and precedents on the legal effect of nominee shareholding. Generally speaking, if the nominee shareholding agreement does not violate the mandatory provisions of the law, it should be deemed valid. In addition, according to the principle of privity of contract, the rights and obligations between the actual contributor and the nominee shareholder shall be bound by the nominee shareholding agreement. However, in legal relationships involving third parties, such as the legal relationship between the nominee shareholder and the company, and the legal relationship between the actual investor and the company, it is necessary to consider the specific provisions of the relevant legal provisions and judicial interpretations.
Fourth, the risk of equity holding.
There are also certain risks and problems associated with equity holding. First of all, since the actual investor is not a shareholder within the meaning of the Company Law, its rights and interests may be infringed by the nominee shareholder. Second, if the nominee shareholder transfers the equity to a third party or makes other disposals, the rights and interests of the actual investors will be seriously affected. In addition, if the company has disputes or lawsuits, it may be difficult to protect the identity and rights of the actual investors. Therefore, various risk factors should be fully considered and corresponding preventive measures should be taken when making a nominee shareholding arrangement.
To sum up, as a special form of equity arrangement, nominee shareholding has certain rationality and necessity in actual business activities. However, due to its particularity and complexity, it also brings a series of legal issues. Therefore, when making a nominee shareholding arrangement, various factors should be fully considered and prudent decision-making should be made. At the same time, for the existing equity holding relationship, it is necessary to strengthen management and supervision, and take corresponding measures to prevent risks and safeguard its own rights and interests.