股权代持的权利架构--股权归属与处分效力的追问

The Right Structure in the Case Where Equity Is Held for Others:A Question of Equity Ownership and Disposition Effectiveness

股权代持中的股权归属与处分问题既涉及到合同法,也涉及到公司法;既涉及到名义股东与隐名股东之间的关系,亦涉及到隐名股东与其他股东、公司以及债权人之间的关系。股权代持的法律性质、股权归属和处分问题一直以来都是理论和实务上迫切需要解决却又悬而未决的问题。明确股权代持的法律性质与股权归属是理顺代持股权处分效力的必要前提。委托代理说能够妥当地解释股权代持法律关系。在委托代理说下,当且仅当其他股东对隐名股东之存在不知情且半数以上不同意隐名股东显名时,代持股权归属于名义股东,反之则归属于隐名股东。在明确代持股权归属后,可进一步明晰代持股权处分的效力,在无权处分的场合下,可以构成股权的善意取得;仅有善意交易相对人得强制执行代持股权。

The cases where equity is held for others are unique corporate litigations in China. The issues of equity ownership and disposal in these cases involve both contract law and company law,as well as identifying the relationship between the nominal shareholders and the dormant shareholders,the relationship between dormant shareholders and other shareholders,the company,and creditors. The legal nature,equity ownership and the legal effectiveness of disposal of equity held for others have always been unresolved issues that need to be solved perplexing the judges. Clarifying the legal nature and the ownership of equity in the case where equity is held for others is a necessary prerequisite for rationalizing the effectiveness of the disposal of equity held for others. The principal-agent theory can properly explain the legal relationship in the case where equity is held for others. Under the principal-agent theory,if and only if other shareholders are unaware of the existence of the dormant shareholders and more than half of them disagree with the record of the dormant shareholder,the equity will belong to the nominal shareholder,otherwise it belongs to the dormant shareholders. After clarifying the ownership of equity held for others,the effectiveness of the disposition of equity held for others can be further explained. In cases where there is no right to dispose of,it can constitute the bona fide acquisition of equity;only the beneficiary transaction counterparts can enforce the equity held for others.