On The Implicit Shareholder Shareholders Qualification

With the advancing development of the market economy of our country, the phenomenon that the economic field has presented a large number of dormant partners, the dispute caused by dormant partner frequently takes place. Without specific reference in legislation in our country, the prime issue regarding this phenomenon, i.e. the certification of dormant partner's qualification becomes uncertain. To this legislative blank, the research of the academia still shows weakly, there is little research of the special system. And dormant partner's case is debated endlessly, perplexed quite more in the judicial practice. So, it is very necessary to assert to dormant partner's qualification that carries on research, this text is finished under such a background.This text divides into the following three parts to describe:Part one, Start with practicing a true case, the author analyze the focus of dispute to this kind of case in theory and practice, i.e. does the dormant partner have shareholder's qualifications.? What is the standard on judging this qualification? The author also explained two kinds of views regarding that if the dormant partner's qualification is asserted mainly in our country: One is "the essence theory ": This theory asserts as long as the investor provides the fund, he should become the subject of right and obligation. That is to say, the actual fund-provider should be deemed as the shareholder of the company. The other one is "the form theory ": the famous shareholder is regarded as the only legitimate holder, but qualification of the dormant partner is denied.Part two, the author particularly analyze the legal principle asserted of dormant partner's qualification. In this part, the author firstly propose the definition of dormant partner, based on which the author further revealed the legal features of dormant partner and the difference with actual holders set forth in the new Company Law, and has analyzed the cause of the dormant partner, so as to further expand the understanding on this issue. Secondly, analyze the standard of asserting of shareholder's qualification: Firstly, should Ran perspective, in accordance with our legislation, the general shareholders should comply with the eligibility criteria. Secondly, the author reviewed the current theory and practice in respect of shareholders accreditation standards perspective, and analysis of the actual investor standard, the standard roster of shareholders, the company charter and business registration standards different perspectives. Thirdly, according to the discussion of these two aspects, propose shareholders accreditation standards on the correct values, which all stakeholders should be considered on the basis of balance of interests, give priority to the protection of bona fide third parties interests, and also reflects commercial publicity, and appearance, and to prevent evasion of the mandatory provisions of law. Shareholders over accreditation standards and values, it is implicit shareholders qualification of reference standards and values.Part three, further discuss the judgment of dormant partner's qualification issue, with a view to render support in theory when countering the same or similar problem in practice. First of all, the author proposed that there were no 100 percent positive answers on how to judge the dormant partner's qualification. I.e. we should systematically analyze this problem in accordance with different situation in different cases and in accordance with the proof submitted by the parties, and adhere to principle of "double standard, keep inside information from outsiders". Secondly, further discuss the judgment of dormant partner's qualification under various situations, from the view of significant shareholders, the company as well as from the third party. Finally, with regard to the sample cases put forward herein, the author proposed his own opinions and solutions.