At present, it is only clear that the protection of the investment rights and interests of dormant shareholders in accordance with the equity holding agreement is not clear about the legitimate shareholder status of dormant shareholders and whether they can enjoy shareholder rights and interests. dormant shareholders can only claim their rights and interests through the proxy holder, and cannot directly claim to the company, so there is a certain risk; The risk of infringement of the rights and interests of dormant shareholders mainly comes from nominal shareholders, and we can constrain them through relevant provisions

隱名股東權益防范

Prevention of the rights and interests of dormant shareholders

01在股權代持協議中明確股東權利的行使方式,比如名義股東必須按照隱名股東的意愿行使股東權利,并提前出具行使股東權利的必要手續,表決權,分紅權,增資優先權等必須通過隱名股東的書面同意等.

In the equity proxy agreement, the method of exercising shareholder rights is specified, such as that nominal shareholders must exercise shareholder rights according to the wishes of dormant shareholders and provide necessary procedures for exercising shareholder rights in advance. Voting rights, dividend rights, capital increase priority rights, etc. must be approved in writing by dormant shareholders

02通過協議約定將名義股東對股份享有的財產權排除在外,如名義股東發生陷入債務,離異等情形時,代持股權不能作為其項下財產進行處分,以防名義股東利用其名下股權侵害隱名股東的財產權益或者當名義股東出現意外等情況時,隱名股東不得不卷入遺產繼承的糾紛案件中,才能拿回自己的財產權,以及名義股東遭遇債務糾紛,代持股份被執行等風險.

02. By agreement, the property rights enjoyed by the nominal shareholders in the shares shall be excluded. If the nominal shareholders fall into debt, divorce, or other situations, the equity held on behalf of them cannot be disposed of as their property, in order to prevent the nominal shareholders from using their equity to infringe on the property rights and interests of the dormant shareholders or in case of accidents or other situations, the dormant shareholders must be involved in disputes over inheritance in order to recover their property rights, And the risks of nominal shareholders facing debt disputes and proxy holding of shares being executed

03在隱名股東與名義股東簽署股權代持協議的同時,可要求名義股東將代持股權質押給實際出資人,這樣一來,當名義股東出現因陷入其他原因導致代持股權被采取強制措施時,由于代持股權已被設定質押,名義股東的處分權受到限制,可在一定程度上保障實際出資人的優先受償權.

At the same time as the dormant shareholder signs the equity proxy agreement with the nominal shareholder, the nominal shareholder can be required to pledge the proxy equity to the actual investor. In this way, when the nominal shareholder is forced to take compulsory measures due to other reasons, as the proxy equity has already been pledged, the disposal rights of the nominal shareholder are limited, which can to some extent protect the priority compensation rights of the actual investor

04約定違約責任,在代持協議中,對名義股東損害隱名股東利益的情況加以約定,并設置嚴格的違約責任,從而起到對名義股東的威懾、約束作用,降低隱名股東權益被侵害的風險.

04 stipulates the liability for breach of contract. In the proxy agreement, it is stipulated that the situation where the nominal shareholder damages the interests of the dormant shareholder, and strict liability for breach of contract is set up, thereby serving as a deterrent and constraint to the nominal shareholder and reducing the risk of infringement of the rights and interests of the dormant shareholder

隱名股東權益防范

Prevention of the rights and interests of dormant shareholders

另外,目前法律沒有明確規定隱名股東能否以其系實際出資人為由對抗該第三人的執行請求,如果有名義股東的債權人獲法院生效判決并提出執行請求,法院和其他權力機關可以依法查封上述股權,并將其用于償還代持股人的債務,從而給隱名股東的財產帶來很大的風險.

In addition, there is currently no clear provision in the law on whether dormant shareholders can use their actual contributors as a defense against the execution request of the third party. If a creditor of a nominal shareholder receives an effective judgment from the court and requests execution, the court and other authorities can legally seal the above-mentioned stock rights and use them to repay the debt of the proxy shareholder, thereby posing great risks to the property of the dormant shareholder

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