试论有限责任公司股权代持的效力与规范运作

公司法及相关司法解释尽管明确了股权代持行为，但对股权代持的效力未予以充分回应，缺乏有效规范。应当从公司内部和公司外部两个层面界定股权代持的效力。公司内部应以实质要件为准，维护股权代持协议的效力，明确工商登记以及股东名册仅具有证据推定力，通过实际出资人以股东身份参与公司经营的事实，认定其具有股东地位，畅通实际出资人显名渠道。公司外部，应当明确股权的物权属性，“第三人”仅为信赖股权交易的债权人，对于非与名义股东直接就股权发生交易的债权人，不享有“第三人”地位，不适用公司法第32条之规定。要加强对股权代持协议的规范，明确出资目的、双方权利义务以及要式要件。

The Effectiveness and Standard Operation of Shareholding Entrustment for a Limited Liability Company

Shareholding Entrustment is very common in the practice of the Chinese corporation law. Though the corporation law and related judicial interpretations have made the shareholding entrustment clear, however, which fails to sufficiently echo the effectiveness of Shareholding Entrustment and thus seems to lack effective regulations. In this article, it is suggested to define the effectiveness of Shareholding Entrustment through inner and outside of a company. In the inner side of a company, the substantial elements shall be taken as the standard to maintain the effectiveness of a shareholding entrustment agreement, and meanwhile stipulate that business registration and stock ledger shall only have evidential force. Through the way of the actual investor participation in the company operation in the name of shareholder to identify his shareholder status and also smooth the channel of the actual investor becoming a registered shareholder. In the outside side of a company, the attribute of real right of the shares shall be clarified. “Third Party” can be only the creditor of the trust equity transaction, as to a creditor which does not directly trade with the dummy shareholders shall not be provided with the status of “Third Party”, and thus shall not apply to article 32 of the Corporation Law. As a whole, it is suggested to strengthen the regulating of Shareholding Entrustment agreement, and confirm the investment purpose and the rights and obligations and essential elements of the parties