The Study On The Effective Of Dormant Stockholder’s Equity Transfer Contract

With the development of China’s market economy, Anonymous shareholder phenomenon emerged liked bamboo shoots after a spring rain, in which a large number of equity transfer is on the growing, Based on the48cases’ collection, more than half number of cases are involved in the transfer issue of equity, Although the Company Law (the three of judicial interpretation) has some basic norms on the relationship between the dormant investors and shareholders, incomplete specifications and fuzzy attitude on how to deal with the problem caused each court in adjudicating cases often stuck to his attitude, the large trial standard gap made the effective of equity transfer contract inconsistent, and also made great difference on party’s rights and obligations. Obviously, this kind of judicial chaos affected the unity and authority of our legal system, and also increased the difficulties of accurately predicting rights and risks. Therefore, summarizing the typical cases in the judicial practice about the effective of dormant stockholder’s equity transfer contract had significant value on the theoretical and practical.The validity contract of share transfer had two factors:the legal subject qualification and the transfer object. The article began with the concept of dormant investment, and narrated the basic connotation and the causes of dormant investment, in which distinguished the dormant shareholders and dormant investment. By using the type classification method, classified the dormant investment and pointed out that the non-circumvention law type of dormant investment was the wanted. On above basis, through using empirical analysis method and comparative analysis method, made three basic research on the "point"(the validity of the contract conditions),"line"(the dormant investment shareholders qualification)," surface "(dormant investment equity property), with the effect as the main line, the whole process of dormant investment equity transfer analysis and demonstration of the legal effect of the main interests of all parties. Taking the effective as the main line, demonstrated the legal effect of the main interests of all parties under the whole process of dormant investment equity transfer.Firstly, through analyzing the characteristics of the equity transfer contract, putting forward the conditions of share transfer contract, including the four aspects: the subject of the contract, contract requirements, the meaning of parties, obey the law or the public interest of the society. Pointed out the subject is the key point to determine the effect of equity transfer. Secondly, from the point to line, discussed the confirmation of qualification of dormant investment problem. Based on the analysis of previous ideas, combined with the actual cases, constructively put forward the criteria of affirming the shareholder eligibility should stand on the protection of the third party’s perspective. Finally, from the line and surface, discussed the quality of "equity" of dormant investor, summarized the reasons causing dormant investment, and analyzed the rationality and legitimacy of dormant investors "equity". Meanwhile, through comparing the agency system in American legal system with the contract law of our country about the effective on applicability of equity transfer made a conclusion the agent system more truly reflect the relationship of rights and obligations between dormant investor and share.In the framework of the basic research on full text, combined with a typical case in the judicial practice, respectively discussed contract effect produced by two different dormant equity transfer. Under the situation of equity transfer of the apparent shareholders without agreement of dormant investors, considering the relationship between transaction cost and income, made a positive attitude toward transferring equity to third party acting in good faith. Therefore, the real righter could advocate right for apparent shareholder based on the dormant investment agreement. In the case of dormant investor, the theoretical circle usually made the shareholder qualification as necessary conditions in the effective of equity transfer contract, The author think the key point to determine the effective of equity transfer contract is the assignor’s share right, the assignee determination based on appearance material form elements, not the shareholder qualification.