关键词: 股权代持, 隐名合伙, 重大利益持有人, 商事外观主义

Abstract: There are various types of shareholding entrustment in China, including legal and illegal ones. On the one hand, shareholding entrustment can activate private investment and financing, promoting economic development, and on the other hand, it can also become a tool for money laundering and gray interest transactions, bringing many difficulties to the supervision of listed companies and the judicial trial of equity disputes. In terms of the current regulation of shareholding entrustment, due to unclear concepts, the concept of “Dormant Partnership”introduced in the civil law system did not fully adopt the strict concept of “Commercial Externalism”. In terms of the regulation of shareholding entrustment in listed corporations, the regulatory concept of “Complete Prohibition”has been adopted; plus the concept of “Dormant Partnership”in the Civil Law System and the strict “Commercial Externalism”, itself has contradictions and conflicts that cannot be reconciled logically. At the same time, China’s Partnership Enterprise Law has not introduced the concept of “Dormant Partnership”. Conflicts and contradictions in various regulatory concepts have led to the failure of regulatory measures, resulting in a proliferation of shareholding entrustment. The regulatory concepts of increasing equity transparency and nominalization in the Common law system have provided us with good insights. With reference to the reform achievements of the Common Law System, this article suggests to timely reform the Company Law and the Securities Law in accordance with the requirements of the FATF, update the regulatory concepts, increase equity transparency, and force shareholding entrustment to develop towards nominalization. It is also suggested to introduce the concept of “Substantial Interest Holder”, establish the corresponding supporting systems to guide the healthy development of shareholding entrustment behavior, and curb various illegal equity shareholding entrustment behaviors without harming the effective demands at the same time.

Key words: dormant shareholder, dormant Partnership, substantial interest holder, commercial externalism