The Study On The Improvement Of The Dormant Shareholders Qualification Recognition System In China

In judicial practice, because of the problems of identification of dormant shareholder’s qualification and check evidence of both parties at court cases It is often seen., but our country on this issue in the legislation of the "vacuum" state, leading to dormant shareholder qualification problem cannot be a law, in judicial practice to deal with this kind of disputes standard has many type diversity, this situation has to some extent greatly the defeat of the enthusiasm of investors, and not conducive to the stability of the market economy, make the company and many relevant stakeholders of the legitimate rights and interests are not protected effectively, which is studied in this paper the dormant shareholder qualification where the cause of the problem, this paper tries to base on the practice of company law and related judicial interpretations, the dormant shareholder qualification research and Discussion on the problems of.The reason why the phenomenon of the emergence of a large number of dormant shareholders, because of defects of the profit of investors and our current laws and policies. Analysis of the reasons for the formation of the dormant shareholders through the concept, characteristics and basic connotation definition of dormant shareholder. On dormant shareholder qualification is not only the premise of rights and obligations between shareholders and outside, to solve between the company shareholders and the company’s third people, but also to improve the needs of investors enthusiasm and investor protection of legal rights, is the need for the development of the market economy.About dormant shareholder qualification cognizance theory abroad and have substantial form said two, said that the essence of actual contribution is the identification of shareholder’s qualification standards, and form said publicity registration is the identification of shareholder’s qualification standard. And the definition of dormant shareholder’s qualification to different standards are mainly in the following two situations:one is the Anglo American law system countries recognized the dormant shareholder qualification standard is the record of shareholders, namely acknowledging shareholder qualification registered shareholders and the denial of the dormant shareholder qualification of shareholders. Because of the trust system is relatively developed, when the nominee shareholders and shareholders disputes, according to trust law to deal with. The two countries of the continental law system on the processing problem of anonymous investment also has a lot of controversy. Germany because of its company registration system strictly, anonymous investment phenomenon has appeared. Company law in Japan and South Korea also has not made the explicit stipulation to the dormant investment shareholders qualification of people. Therefore, the mainland legal system country identified problems about dormant shareholder qualification in the judicial practice in the trial is not a standard confusion.Our country about dormant shareholder qualification problem theory also varied, including substantial theory, form said, difference between said; plus provisions of China’s company law and related judicial interpretation and judgment opinion on dormant shareholder qualification is in a vacuum state, and the court in the identification of dormant shareholder’s qualification standard is not a trial there are a lot of problems, fully explained the problem identified in the dormant shareholder qualification in our country, such as the company’s legal system is not perfect, the establishment and operation practice of the company are not standardized, the court on the dormant investment behavior attitude more contradictory and lawyers in the company law practice role cannot play very good etc..In view of the existing in the determination of the dormant shareholder qualification in China, the author from the improvement of legislation; the principle and standard of perfection of dormant shareholder qualification; construction of equity trust system and give full play to the lawyer for equity in the determination of the role of starting, of the dormant shareholder qualification authentication system of research, in order to make the protection of dormant shareholders the right to be the guarantee of institution and the law.