Analysis Of Limited Liability Company Dormant Rights And Obligations Of Shareholders

Disputes are prone to be taken place between dormant partners and nominal partners, between dormant partners, nominal partners, a company and the other partners, between dormant partners, nominal partners and the third party. However, the absence of legislation and the inconsistency of judicial practice make it more difficult to handle these kinds of cases. Whether dormant investors are qualified to be shareholders, how to resolve the disputes concerning the rights and obligations of the dormant partner, whether the rights and obligations of the dormant partner should have legislative norms are all problems in front of us that urgently need to be solved. This thesis starts with the basic theory of the dormant partnership, analyzes the most common types of disputes in judicial practice, together with the principles that should be followed while settling disputes among dormant partners, combined with the current situations of China's legislation, attempting to put forward a number of solutions to the above problems in the hope of giving useful suggestions to the legislation of the rights and obligations of the dormant partnership in China.This thesis is divided into three parts: introduction, main text and conclusion, in which the main text is divided into five chapters.The first chapter introduces the concept of dormant partnership and its characteristics, analyzes the causes of dormant partnership. Firstly, I analyze the causes of dormant partnership; secondly, I define the concept of dormant partnership by exploring the notion and characteristics of dormant partnership; lastly, I identifies the basic contents of the dormant partnership by comparing its concept with other related concepts of dormant investment, dormant shareholder, nominal partner, controlling stake.Chapter two is about the legal status of the dormant partners. Firstly, discussed the importance of Qualification of the dormant partners; secondly, introduced some theories on the Qualification of the dormant partners in China: the negative theory, the positive theory, the neutral theory. Lastly, due to the many legal issues involved in the dormant investment of companies, including the rights and obligations between dormant partners and nominal partners, the legal relationship between the dormant partners, nominal partners and the company, the legal relationship between the dormant partners, nominal partners and The third person. Different cases should be treated differently depending on different legal relationship, object of protection, Qualification of the dormant partners.The third chapter discusses the most common types of disputes about the rights and obligations among dormant partners in judicial practice and their treatments. By invoking influential actual cases, I describe the complexity of cases on different types of disputes concerning dormant partner. In the analysis of the cases, I put forward ideas to resolve different cases. Lastly, I summarize the principles which should be followed while settling disputes concerning dormant investments in judicature practice.The fourth chapter discusses the necessity of making the rights and obligations of dormant partner legislatively standardized. This chapter analyzes the three viewpoints in the academic circle on whether it is needed to establish dormant partnership in the legislation, coming to the conclusion that establishment of a system of dormant partnership in China is in line with the freedom of the contract legal principle, which is also the internal demand of the market regulation, requisite for real life and judicial practice, making the legal system of investment more complete. The legislation should not avoid the social relations that have already existed and that need to be adjusted by law, but clarify them in time, and regulate, guide, adjust them. Only through this way, shall people's enthusiasm to invest be aroused, more social funds for production be used, operators' funds pressure be released, and Chinese economic development be enhanced.Chapter five explores the legislation of the dormant partners' rights and obligations. By analyzing the current situations of China's legislature on dormant partners' rights and obligations, I suggest to improve relevant legislation. This chapter analyzes the lack of legislation on dormant partners in the Company Law and the spirit of the Supreme Court in the Draft of Relevant Opinions on Cases relating to Company Disputes, proposing China to further improve legislation. In my view, the legislative standards of the dormant partners' rights and obligations should be based on China's existing legal framework, on which some revisions and amendments should be made, that is to say, to emend and add direct provision on dormant partner and their rights and obligations to the Company Law and other related laws. For example, to determine the concept of dormant partner, to recognize the effectiveness of dormant investment, to establish general rules for the qualification of dormant partner, to establish a system to protect the bona fide third parties, etc.The conclusion part once again emphasizes the necessity of legislation of dormant partnership to fully exercise its positive role and eliminate its negative impact, so as to promote the sustainable and healthy development of the Chinese economy.