论公司股权代持中的三大关系

On the Three Relations of the Company Share-Holding Entrustment

摘要: 股权代持涉及实际出资人、名义股东、有限责任公司以及第三人等，有关股权代持引发的各方的权利与义务关系厘定的前提是应理清实际出资人与名义股东间、代持行为主体与公司间以及与第三人间的三大关系。本文对三大问题进行逐个剖析，并对最高人民法院关于适用《中华人民共和国公司法》若干问题的规定(三) (以下简称《公司法解释(三)》)中关于股权代持问题的第24条至第26条、相关学者的观点、学界的学说进行分析，提出的观点和建议是：股东资格的认定应采用股东名册标准即股权归属于名义股东、从合同客体的角度思考则可以根据合同法、民法等解决代持协议的性质问题、实际出资人的显名未获得半数以上股东认同的情形出现时，由公司内部决定名义股东的去留等。

Abstract: The issue of the share-holding entrustment involves several main parties, such as the actual in-vestor, the nominal shareholder, the company with limited liability and the third party. The premise of determining the relationship between the rights and obligations of the parties involved in equity holding is to clarify the three relations between the actual investor and the nominal shareholder, between the acting agent and the company, and the third party. Dissecting the three major problems one by one, this paper makes an analysis of Article 24 to 26 on the issue of share-holding entrustment in the Provisions of the Supreme People's Court on Several Issues con-cerning the Application of the Company Law of the People's Republic of China (III) (2014 Amend-ment) (hereinafter referred to as the "Interpretation of the Company Law(III)"), as well as the views of relevant scholars and the theories of academic circles. The views and suggestions are put forward that: The qualification of shareholders should be determined by the standard of stockholder register—the equity belongs to the nominal shareholder; the nature issue of the agreement can be resolved according to contract law and civil law; and when the actual investor’s request is not approved by more than half of the shareholders, it is up to the company to decide whether the nominal shareholder leaves or not, etc.