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Legal Identification Of The Nominal Shareholder Qualification

Posted on:2011-04-21Degree:MasterType:Thesis
Country:ChinaCandidate:P F ZhuFull Text:PDF
GTID:2166360305481452Subject:Law
Abstract/Summary:PDF Full Text Request
In China, along with the establishment of corporate systems, the company's independent responsibility and the principle of limited liability of shareholders were established then, becoming the booster for the development of the modern society, but also providing an opportunity for someone to circumvent the law. Some people,for various purpose,get the shareholder status in the form of nominal shareholder to circumvent the necessary restraint of the Company Law on the company's main establishment body as well as the shareholder qualification, and then get the interests. China's Company Law only stipulates the shareholder's rights and obligations without definite regulations on how to acquire the shareholder's qualification, so the judiciary often adopts the different views on the legal identification of the nominal shareholder qualification disputes in the trial practice because of various recognitions, leading that the same case has various judgments in different courts, which is not conducive to the settlement of the disputes, but also undermines the authority of the judiciary. Therefore, it is necessary to do a research for the legal identification of the nominal shareholder qualification.This paper is divided into four parts:Part one: Cases introduction and questions to raise. In this part, firstly introduces the identification of the shareholder qualification disputes caused by that Haiti Company, under the name of the nominal shareholder, on behalf of BeiGuang Croup, holds the shares of BeiGuang Technology Company, raises how to deal with the problem when the nominal shareholder and the actual investor have a dispute on the identification of the shareholder qualification, and briefly describes two different views in a trial on whether the nominal shareholder can be identified as the shareholder.Part two: The definition and manifestation of the nominal shareholder. I first propose the concept of the nominal shareholder, and divide it into two kinds- be nominal shareholders by lending name to others or conventions, combining with China's company practices and according to the actual investor's intention.Part three: The criteria for the identification of the nominal shareholder qualification. In this part, I, combining with the cases shown in this Paper, point out the essential conditions for a normal shareholder that should have complete material terms and procedural terms, exercise one's rights as a shareholder practically, and do not violate mandatory provisions of the law. However, in the practice of legal identification of the nominal shareholder qualification, the nominal shareholder and the actual investor are not fully equipped with the above conditions, and then lends to the disputes on the identification. I list two kinds of views existing in the current theoretical circles on the criteria for the identification of the shareholder qualification and make the comments and analysis on it, point out the principles should be adhered to in the process of legal identification of the nominal shareholder qualification so that can provide reference for the following analysis on how to define the criteria for the legal identification of the nominal shareholder qualification. I, advocate that adhere to the Internal and External Relations Theory among the disputes on the legal identification of the nominal shareholder qualification through mainly analyzing the Civil Law's Meanings and the Commercial Law's Appearances in the process of the legal identification of the nominal shareholder qualification, and make explanation, combining with the cases shown in this paper.Part four: Evidence and Specific rules of the legal identification of the nominal shareholder qualification. In this part, I, combining with the cases shown in this paper, divide the various kinds of evidence of the legal identification of the nominal shareholder qualification into substantial evidence and formal evidence, and mainly discusses the legal relationship between all kinds of formal evidence and the acquisition of the shareholder qualification as well as how to deal with when all kinds of formal evidence conflict with each other. Finally, combining with the cases shown in this paper, expound the specific rules of the legal identification of the nominal shareholder qualification.
Keywords/Search Tags:Nominal Shareholder, The Actual Investor, Shareholder Qualification
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