The Legal Issues Of The Dormant Shareholders Of A Limited Liability Company

For company system, the most core problem for the shareholders of a company.Limited liability company shareholder identity determination must meet two conditions: one is investment or subscribe for shares to the company;2it is shareholder namesare recorded in the company’s articles of association or shareholders list. The former is to shareholders as to the identity of the substance requirements; the latter is to confirm the identity of the shareholders form request. In normal circumstances, as children’sshareholders, they should be consistent. However, in some cases, this consistency is destroyed. Dormant investors to invest to the company but are reluctant to open their own identity, not in the company’s articles of association or shareholders recorded or change in time, to form a dormant shareholders.Dormant investment has two main features, namely, shareholders’ investment behavior and hidden behavior. And contributive and implicit name these two characteristics is the Shared attributes all dormant investment behavior, rather than a specific attribute of the limited liability company, shareholders, and thus lead to the connotation of the dormant shareholders definition scope is too broad. This paper clearly defines the dormant shareholders limited liability company is refers to enjoy shareholders’ rights to borrow for investment purposes in the name of another person the actual investorto invest in limited liability company.For the legal status of dormant shareholders, common law countries promoting the principle of autonomy of private law, the problem of dormant shareholders Anglo-American law system is also totally agree investors autonomy attitude. Continental lawsystem due to its statutes, absolute ownership, with the constraints of the civil law theory, such a right, part of the continental law system countries refused to introduce thetrust system, the hidden shareholders take a completely negative attitude. However, with the development of economy, appear a series of contract law, agency law, property law, company law and other legal system cannot solve the practical problems, lead toJapan, South Korea and other countries to the problem of dormant shareholders began to appear in the legislation of the loose. In the current law in our country is not the problem of dormant shareholders regulation, only in the implementation of "about applicable <company law of the People’s Republic of China> the regulation of several issues (three)", from the perspective of judicial practice, puts forward some necessary references.Dormant shareholders problems qualification confirmation is the foundation of the dormant shareholders. Our country "company law" does not specify the elementsmissing cases, decide how to shareholder qualification of investors. In the benefit balance principle, the principle of party autonomy principle, encouraging investment, ensure the principle such as the principle of transaction security, trading fast, under the constraint of clearly defined the litigant parties, evidence, confirm the evidence effectiveness, etc., determine the concrete realization form of the anonymity of shareholders, toconfirm the implicit name of shareholders as a limited liability company shareholder status.At the present stage of dormant shareholders exist in our country legal basis mainly have three forms of agency, partnership and trust system. To regulation agency and partnership implicit shareholder and the relationships between shareholders, whether its legal basis, and specific operating procedures, all contradiction and the law. Makedormant shareholders of the shareholders of a company not only identification difficult, at the same time also produced many disputes caused by the mutual agreement notclear, such as implicit name dispute the rights and obligations of shareholders, disputes over defective capital contribution, equity transfer issue, return the investment fund,and other forms of dispute. Take reasonable way of investment, therefore, clear implicit shareholder and shareholder equity agreement between type, in the form of certain equity agreement regulating the conduct of both sides is effective to reduce the dispute,maintaining the order of dormant investment and guarantee, the key to the shareholders. Equity trust property in isolation system advantage, preferential tax advantages, cautious loyal security advantages such as superiority, effectively safeguard the legitimate rights and interests of the trust on both sides. Therefore, in order to solve the problem of dormant shareholders equity trust system, with good adaptability and bright prospect. From basic terms design dormant shareholders equity trust agreement, the improvement of the dormant shareholder equity trust registration system and legal relief ofdormant shareholders equity trust comprehensive improvement three aspects put forward concrete implementation of the problem of dormant shareholders, so as to guarantee the anonymity of the lawful rights and interests of the shareholders’ investment.