On The Regulation Of Dormant Shareholders Of Company

The proplem of dormant shareholder in our judicial practice has become a prominent legal phenomena, which caused the legal disputes are increasingly happened. However, system of dormant shareholder which has been formulated in no other laws has not yet been clearly defined in our company law, resulting in our law system as a "vacuum" state. Because of different criterion, people's courts at various levels have acted as referee the case of dormant shareholders in different results, which has damaged the judicial authority. The Supreme People's Court formulated the dormant shareholder in the document of Provisions of the Supreme People's Court on Several Issues Concerning the Application of the PAC Company Law (Ⅲ) in February 2011, trying to reverse the situation. As this judicial interpretation has issued in a short time and has not been systemed requirements of the dorment shareholders, it is a failure to fully play its role in judicial practice. This paper is trying to make up for the law missing, which attempts the theoretical of company law, analyzes the legal status of the dormant shareholder and gives the legal advice on this problem.This paper includes three parts, i.e. preface main part and conclusion. There are four artcles in the main part of this paper.The first part briefly describes dormant shareholders and problems. In this part, writer exhaustively interprets the concept of dormant shareholder, pionts out that the significant ferture of dormant shareholder is anonymous and the actual contrubution to the company. Then, the author explains the causes and legal difficulties of the dormant shareholder, indicates the root cause of the dormant shareholder is the profit of maximization of businessman, the direct cause is that the lacking of the legal and Special conditions in our courtry makes this proplem more prominent and complex.The second part mainly focuses on the comparsion of the dormant shareholder. Form the comparsion of the different legal families, the author pionts out that Anglo-American legal system solve the dormant shareholder through its development trust and in Civil-Law courtries the dormant shareholder has been plagued by legislators judiciary and academics because of both the less development trust and exciting thories. At the same time, the author also compares the rule of our company law with the Supreme Court's attitude of the dormant shareholder.The third part is the analysis of dormant shareholder, which is the focus of this paper. The author first analyzes the property of dormant shareholder, which is considered as limited illegal that if dormant shareholder do not violate the rule which is specification with the effectiveness, it can be recognized its effectiveness. Secondly, the author points out that the core issues of dormant shareholder is whether it can be identified the shareholder qualification, raises the Modified Form Theory to account the shareholder qualification of dormant shareholder and proposes substantial elements and formal requirements of the shareholder qualification of the doamant shareholder. Finally, the author detailedly analyzes the legal status of dormant shareholder in company thought the Modified Form Theory.The last part is the legal advice of dormant shareholder. The author proposes the approach of the formulation of the dormant shareholder based on analyzing the necessity and feasibility of the legal regulation of the dormant shareholder,which is that Supreme People's Court formulates judicial interpretation for regulating the dormant shareholder and then the legislature amends the company law for establishing the system of the dormant shareholder. In the end, the author also designs the Specific legal provisions of the dormant shareholder.