The Concept And The Status Of Dormant Shareholders Analysis

Dormant shareholders, as a fairly common way to invest in real economic life, this phenomenon increases in our market economy and thriving commercial law today, and it is also an increasing number of disputes arising. Traditional contract law, property law and company law have been insufficient to regulate and protect these acts. The concept and the status of dormant shareholders is the basis and key of solution to dormant shareholder issues. Until now, legislation does not explicitly provide for this issue, and scholars have not developed the theory and doctrine, resulting in the face of practitioners at the time of this dispute can be no legal basis, no theory can be based on the situation." Supreme People's Court on the application <Company Law of the PRC> Provisions on Several Issues (c) "(Supreme (2011) 3, hereinafter referred to as interpretation (c)) promulgated on February 16,2011.One on "the actual investor" provisions should also apply to dormant shareholders, and they can be as an implicit shareholder basis for dispute resolution. However, we also realize that, the emergence of interpretationⅢ" can not fundamentally solve the problem of dormant shareholders. The social effects as well as the legal effect require further observation. At the same time, " interpretationⅢ"itself has many loopholes, which to some extent, affected the play of its effect. Therefore, theoretical study of dormant shareholders not because the "interpretation of the three" comes towards the end, just went to a new starting point. Based on this view, in the "interpretationⅢ" issued soon, this article Summarizes the prevailing theory nowadays more and enactment of legislation, to "The concept and the status of dormant shareholders analysis" as the title of this thesis.Paper is divided into four parts to systematically analyzed and studied the issue of dormant shareholders.The first part:This section first from the perspective of comparative law, analyzed the existence of Dormant shareholders in different national jurisdictions, and pointed out the investment model that does not comply with the trend of national legislation, and few other countries have such legislation cases; analysis of the legislative situation in China, pointed out that the lack of legislation and theory brings practitioners of the troubled sector. Finally, on the basis of the enumeration and analysis of relevant theories, this article defines the definition, the characteristics and the classification of dormant shareholders.The second part:This section first lists the investment patterns of dormant shareholders disputes in economic life, and pointed out that the interests of this model complex, transaction costs and higher risk. Subsequent in-depth analysis of the dormant shareholders and other persons of the legal relationship, define their respective rights and obligations and dispute resolution.The third part:This part mainly on the level of principle in commercial law, value the existence of this model of dormant shareholder. The principle of commercial law is the command and guidance of commercial legislation. From the perspective of the principle of trading quick, dormant shareholder model is not efficient. From the perspective of the principle of enterprises to maintain, dormant shareholder model is unstable form. From the perspective of the principles of transaction security, dormant shareholder model is not conducive to the protection of third party. Under the principle of autonomy in private law, this mode is allowed from the business idea of freedom and support.The fourth part:This section first reviews the equity trust system, which has great influence in academic circles. Need to introduce this system in our country, and thus to regulate the dormant shareholders mode and protect the interests of the parties concerned. Subsequent "interpretation of the three" relevant articles were reviewed, and pointed out the progress and deficiencies of "interpretationⅢ" in dealing with the issue of dormant shareholder.