《证券法》2019年修订背景下股权代持的区分认定

股权代持是现代商事交易中实现资本所有权与资本控制权分离的工具之一,这一体现商事自由的委托出资方式在实践中被广泛适用。我国《公司法司法解释(三)》肯定了委托出资关系的法律效力及实际出资人权益。但最高人民法院近两年在上市公司以及金融机构股权代持纠纷个案中连续确认股权代持协议因违规并危害社会公共利益而无效,使得代持协议的效力认定陷入不确定风险之中。《证券法》2019年修订将上市公司"股权结构的重要变化"明确列为重大事件,而股权代持作为重要的股权结构变化情形之一属于应当进行信息披露的内容,股权代持风险有可能通过充分的信息披露进行防控。实践中一概将股权代持关系不加区分地视为监管规范中所禁止的委托代持,混淆了委托代持与信托代持以及消极信托代持与积极信托代持的差异,并不能真正实现监管的初衷。股权代持由于代持原因、代持方式以及被代持主体的不同,产生的风险有很大差异,应该得到不同的法律评价。宜在对股权代持事实要素区分识别的基础上对其法律关系和法律后果进行规范层面的区分认定。违规股权及其收益如何处置以及行政监管与司法审判的界限如何划分,这些都应依据股权代持的具体情境作出综合考量。

Divisional Identification of Nominee Shareholding Under Backgroud of Securities Law Revised in 2019

Nominee shareholding is one of the tools for the separation of capital ownership and capital control in modern commercial transactions. This method of investment in the name of trustee which represents a kind of commercial freedom is widely used in practice. The III Judicial Interpretation of Chinese Company law also affirms the legal effect of the relationship between the entrusted and the trusted and the rights of the actual investor. In recent years, the Supreme Court has continuously confirmed in the case of nominee shareholding that the nominee shareholding agreement is invalid due to get out of line of regulations and does harm to the public interests, which has caused a risk of uncertainty of the effectiveness of many nominee shareholding’s agreements. Securities Law revised in 2019 clearly listed "important changes in the equity structure" of listed companies as major events. Considering the nominee shareholding as one of the important changes in the equity structure, nominee shareholding belongs to the content that should be disclosed. The risks of nominee shareholding are possible be prevent and controlled through adequate information disclosure. Considering all nominee shareholdings in practice as the kind of holding which is forbidden by some regulations, which confuses to distinguish the differences between the entrusted holding and trust holding, active trust holding and passive trust holding, and can not truly achieve the idea of supervision. Due to the differences of the reasons of holding, the method of holding and the object of holding, the nominee shareholding will have different risks and should be evaluated in different ways. Therefore, on the basis of identifying the factual elements of shareholding, it is necessary to distinguish the legal relationship and legal consequences in a normative perspective. How to dispose of illegal shares and their income and how to draw the lines between administrative supervision and judicial trials should be based on the specific circumstances of nominee shareholding.