The Certification Of Dormant Investor’s Qualification As A Shareholder

Nowadays in Socioeconomics’ life, dormant investment phenomenon becomefrequently. Dormant investment meets someone’s invest demand that could notdisplay the identity and inadequate conditions or some other reasons, makes thefinancing mode more flexible. In our country, The Company Law didn’t standard thedormant investment clearly. Before《The Supreme People’s Court on the applicationof "the people’s Republic of China company law provisions of a number of issues(three)》(the following abbreviates《Companies Act judicial interpretation (three)》),only mentioned in Supreme People’s Court’s Exposure Draft. Some district courtrelease targeted matters of opinion under the The Supreme People’s Court. Theacademia has different opinions of the dormant investment, there are formal theory，substantial theory and discrimination theory. In judicial practice, district court takedifferent opinions and standers in dormant investment cases, induce big confusion,conflict of benefits occurs between dormant investor, explicitly shareholder, thecompany and the third party, between these conflicts, the certification of dormantinvestor’s qualification as a shareholder is the most prominent. The certification ofdormant investor’s qualification as a shareholder is not only related to the benefit ofthe dormant investor, and also related to the benefit of the explicitly shareholder andthe third party transaction with the company. It is urgent to standard the certificationof dormant investor’s qualification as a shareholder to protect the benefits of thedormant investor、explicitly shareholder and the third party.《Companies Act judicialinterpretation (three)》 accepts the dormant investment and the rights and obligationsbetween dormant investor and explicitly shareholder constituted according to theinvest agreement, it offers a legal foundation to certificate the dormant investor’squalification as a shareholder.This text firstly raises the question of the the certification of dormant investor’s qualification as a shareholder by anglicizing the case of Bai Yulan hotel equitydispute, adimits the necessity of the certification of dormant investor’s qualificationas a shareholder by weighing the advantages and disadvantages of the dormantinvestment. Secondly analyses the relationship of the dormant investor and theexplicitly shareholder, other shareholders and the third party, expound the disputebetween them and confirm the principle to adjust the dispute. Summarizing theprinciple and the rules of the certification of dormant investor’s qualification as ashareholder, we should distinguish the style of the dispute (internal relationship orexternal relationship).Solving the internal dispute should follow the autonomy of willprinciple and solving the external dispute should follow the publicity doctrine incommercial law. In the last of the text expounds the legal effect of the certification ofdormant investor’s qualification as a shareholder, that when the dormant investor’squalification as a shareholder was certificated, the dormant investor should ask fordisplaying name and compensating for damages. Besides,this text anatomy theproblems which exist in the 《Companies Act judicial interpretation (three)》.Thoughthe 《Companies Act judicial interpretation (three)》 takes the positive attitude to thedormant investment and makes regulations about the dormant investment, there aresome legal logic undistributed problems exist, and could not link up to the CompanyLaw.