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Analysis On Confirmation Of Shareholder's Qualification Of Qiu Yuanwang Co. LTD

Posted on:2016-02-01Degree:MasterType:Thesis
Country:ChinaCandidate:S L CaoFull Text:PDF
GTID:2336330473467317Subject:Law
Abstract/Summary:PDF Full Text Request
With the increase of shareholders' qualification identified disputes, the specific confirmation of shareholders' qualification has attracted more and more attention. “Supreme People's Court on the application of <Law People's Republic of China>Provisions on Several Issues(3)” has provided guidance for the confirmation of qualification of shareholders and proposed dormant investment contract and the actual investor, but the specific contents, identifications of them have not been detailed stipulated. Besides, the shareholders' accreditation standard has not been established. Therefore, the widely discussion of confirmation of them is significant in academic and practical areas. Capital contribution is the statutory and agreed obligations of shareholders. The invested interest agreement between the shareholders, which may be a agreed way of profit distribution between shareholders, or shareholders' capital flight behaviors, thus the effectiveness of that convention is worthy of further discussion.The case of confirmation of shareholders' qualification of Qiu Yuanwang is a typical one on the confirmation of shareholders' qualification and shareholders' investment interest dispute triggered by "shares agreement", lasted for three years and involved in multiple items of the theory of company law. the case focuses on three parts: the nature of “investment agreement" signed between investors, shareholder should be entitled or not, the agreed interest on investment. In order to solve the dispute, discuss the above three questions based on the existing company law theory and legal provision, the first part is to discuss the "Nature" of the investment agreement between shareholders. Dormant investment contract is a one concluded by the actual investor and nominal shareholder, the actual investor pay the capital to the company in the name of the nominal shareholder and enjoy the investment interests. Promoter agreement is a contract set by the incorporators, which is to set up some provisions on the incorporation in the process of incorporating, and is common behavior of the originator aim to set up company. In practice it is necessary to confirm them on the basis of their content and characteristics; the second part is about how to identify the shareholders' qualification, recognize the actual investors and the original shareholders in practice. The actual investor should be recognized from four aspects: subjective dormant investment purpose; actual investment; have not been registered and the ownership of investment interests. The confirmation of original shareholders should be treated differently between the internal and external legal relations: company's internal shareholder confirmation is on the basis of substantial elements, according to the formal requirements to resolve external disputes; the third part is to analyze about the validity of the agreement between the shareholders' investment interest. Chinese company law is in respect of shareholders' autonomy of the will, but the agreement will be invalid if this agreement is in violation of Chinese laws and regulations. Hoping the above discussion can provide reference for China's future legislation and offer guidance for the solution of similar cases in the judicial practice.
Keywords/Search Tags:dormant investment contract, promoter agreement, actual investor, original shareholder, capital flight
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