Normative Construction to the Principle of Non-enforceability of Nominal Shareholding
The core controversy over whether equity held on behalf of others can be enforced lies in the characterization of the nominee shareholding relationship.The Entrustment Theory contradicts corporate law,leading to conflicting evaluations on whether equity can be enforced.Nominee shareholding meets the criteria where the trustee holds property rights for the benefit of the beneficiary and should be interpreted as an express trust.Based on the interpretive theory of trust law,the actual investor is not a shareholder or an ordinary creditor before the nominee is declared,but a beneficiary.The Trust Theory can coherently explain the internal and external relationships of nominee shareholding.The comparative law and interest measurement indicate that the priority of the actual investor's rights aligns with the unique structure of beneficial rights and efficiency standards.Reliance principles and lending experience also show that creditors of the nominal shareholder typically do not grant credit based on the appearance of equity ownership,lacking normative and factual grounds for a presumption of reliance.Courts should clarify the principle that nominee shareholding cannot be enforced based on Article 17 of the Trust Law.There are two exceptions to this principle:if the creditor of the nominal shareholder provides evidence that they granted credit or acquired the debt based on the appearance of equity ownership,or if the nominee shareholding violates laws or public interest.
nominee shareholdingexpress trustbeneficial rightsnon-enforceabilitygrant of credit
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