The validity determination on the stock-holding in violation of the mandatory provisions
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D922.291.91;D923;D922.287

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    Abstract:

    The provisions of Article 153, paragraph 1 of the Civil Code, as a general provision, opens the way for mandatory provisions to interfere with the effectiveness of juristic acts. Then the supervision rules as the manifestation of mandatory provisions to interfere with the effect of stock-holding is justified. It should be pointed out that the existing identification methods of mandatory provisions can only solve the problem of the source of public law norms entering the field of private law, but it can’t provide guidance for the judgment of the validity of the juristic acts. In contrast, the principle of proportionality in administrative law provides a normative path for judging the effectiveness of entrustment. Therefore, the determination of the invalidity of stock-holding needs to be be judged from the sub-principle of the proportionality principle. In other words, it needs to confirm that the invalid means is helpful to achieve the normative purpose of mandatory regulations, and it is necessary for mandatory regulations to interfere with the effectiveness of stock-holding, and the invalidity of stock-holding satisfies the requirement of balance. At the operational level, in order to the convenience of research, the stock-holding acts in judicial practice can be subdivided into stock-holding formed by changing shareholder identities, and stock-holding by false expression, and stock-holding by changing behavior types. However, only after the principle of proportionality is finally filtered, serious illegal stock-holding can be deemed invalid. At the same time, when judging the validity of illegal stock-holding, attention should be paid to distinguish the difference between the juristic acts and the acts. Only when the purpose of regulatory rules is to restrict or prohibit the juristic acts, it is necessary to intervene in the effectiveness of the juristic acts. As for the effectiveness of the acts of stock-holding, administrative liability or criminal liability can be imposed directly in accordance with the norms of public law. Since invalid regulatory technology is the most severe means of restricting individual autonomy, the determination of invalidity of stock-holding should be moderated. In other words, it should further judge whether there is partial invalidity, relative invalidity, backward invalidity and other valid forms, and it doesn’t have to be subject to absolutely invalid restrictions. In addition, when it resolves the return of benefits after invalidity, it should pay attention to distinguish the difference between the interests of control rights and economic interests, and it is liquidated in accordance with the principle of "the illegal unjust enrichment shall not be returned". According to the arrangement of the legal system, the beneficial investor shall not request the return of equity and earnings, but it not limit the equity capital and interest because of no final transfer. Based on the requirements of the unification of law and order, although the recipient can exclude the legal effect of returning the benefits in the lawsuit, but the recipient may still bear administrative responsibility or criminal responsibility, or even be confiscated. At the same time, in order to the special needs of legal protection, if the nominal shareholder is the main fault party or is conducive to the realization of social and public interests, it can be allowed to return exceptionally, and it is possible to apply the discount compensation and damage compensation rules. Besides, in order to avoid the occurrence of breach of trust and illegal profits, when the legal act is determined to be invalid, the court can make judicial suggestions to the regulatory authority to allow the parties to accept public law punishment.

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吴越,蒋平.论股权代持违反强制性规定之效力[J].重庆大学学报社会科学版,2022,28(2):207~219

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  • Received:
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  • Online: April 25,2022
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