Study On The Identification Of Dormant Partners' Shareholder Qualification

Identifying the qualification of shareholder is always a problem as long as there are limited liability companys. It is not a problem deserving violent debating abroad. However, this is a snarled puzzle in practice in China, and it becomes more complicated when come to dormant partners and common partners. In our country, The dormant investment is universal phenomenon, and also a blind spot lacking of suffient legislation. How to resolve disputes between dormant partners and common partners is very difficult in judicial practice. No matter what kind of hidden investment dispute, it has something to do with identifying the shareholder qualification of dormant partners. Clarifying this problem is the precondition for a good and effective resolution of hidden investment dispute.This article is to clarify the issue about identification of dormant partners from both theory and practice aspect, to rethink relative legislative controversy, basic concept and identification standard, and to propose primacy legislative suggestion.To discuss the identification of dormant partners, there are four parts in this article: Part one is a general introduction of dormant partners by stating the conception, feature and clasification about dormant partners briefly. This part is to present the reserch object, to lay the foundation for following text.Part two is main theories about the identification of dormant partners' shareholder qualification. Firstly, to enumerate four main theories about the identification of dormant partners' shareholder qualification, and to make a comment about these theories respectively: actual controller theory in limited in function; essence theory is insuffient in arguments; discrimination theory seems flawless but is questionable actually; the author tend to perfect relative theory based on rechtsscheintheorie.Part three is the legislation and judicial practice about the identification of dormant partners' shareholder qualification, including lack of laws -and-regulations and the courts' instructive standpoints. And then, to summerize the feature of current legislation and judicial practice about the identification of dormant partners' shareholder qualification. It aims to understand this issue roundly by combining with those theories mentioned before.Part four is the rethink about the identification of dormant partners' shareholder qualification. It is the pivotal part in this article. Firstly, considering some advice for making dormant partners legally, the author deems we should treat it delibrately and thinks comfirmation of dormant partners is more harm than good. Secondly, pose that the identification of dormant partners' shareholder qualification is a special dilemma in China's company law practice and must consider it correctly. Thirdly, to make a value guide overall by using rechtsscheintheorie and publicity dorctrine in commercial law to define the essential concept of the identification of dormant partners' shareholder qualification. fourthly, make a distinction between what-it-is and what-it-should-be, between the ones who aims at evasion of law and the ones who do not aims at evasion of law, and between the identification of liable person and the identification of shareholder qualification. And a special case deservs special treatment. Finally, submit the legislative proposals about the identification of shareholder qualification.