Research On The Protection Of Dormant Investor's Legitimate Rights And Interests

With the deepening of market economic reform, the social development presents the trend of diversification of interests and diversified forms of investment. Investors are more respected this kind investment of dormant investment for its dormant characteristics. The Supreme People's Court's Provisions On Several Issues(three) Of Company Law have the basic provisions in the problem of dormant investment. However, because of the complexity of the dormant investment interests of the measure, these provisions have somewhat difficult in solving the problem of dormant investment. The protection of rights and interests of dormant investor involves multiple legal relationship, on the one hand it is the internal relationship between the nominal shareholder, on the other hand it is the external relationship between the company and other shareholders, or the third person outside the company. The focus of this paper is balance the interests of these parties and on this basis to protect the legitimate rights and interests of the dormant investor. In this article, by reference to the Supreme People's court in the trial of dormant investment disputes in the established rules of adjudication to make a concrete analysis of dormant investment for the protection of the rights and interests of present situation, and on the basis of inquiry of dormant investment rights and interests protection path and put forward relevant suggestions for improvement.In addition to the introduction, this paper is divided into six parts:The first part is to put forward the problems, it mainly expounds the major issues in the protection of the rights and interests of dormant investor.The second part is the overview of the basic theory of the protection of the rights and interests of dormant investor. This part is mainly to define the basic concepts and discuss the protection of the rights and interests of the necessity. The purpose of this part is to pave the way for the theoretical basis of the right protection of rights and interests.The third part is discuss the key to protect the rights and interests of dormant investor confirmation of shareholder's qualification. But the shareholder qualification is facing the differences between theory and practice. The dormant investor's protection of the rights and interests is facing substantial evidence difficult to collect and the court is pay attention to the Rechtsschein theories in commercial judgment and other adverse conditions.The fourth part is mainly study the status of dormant investor's protection of the rights and interests. The protection of the rights and interests of dormant investor not only involved with the interests of the parties involved, but also related to the interests of the third disputes. In the inner relationship, dormant investor and the nominal shareholder faces risks and problems in the effect of dormant investment agreement and form of identification, the ownership of equity and the way of claims, the distribution and the agreement of investment income. In the external relationship, dormant investor and the company shareholders or the company outside the third person are faced with confirmation of shareholder's qualification of dormant investor, nominal shareholders and creditors execution of stock ownership and the nominal shareholder of the unauthorized transfer of equity, nominal shareholder of accidental death or divorce risks and problems.The fifth part is to explore the dormant investor path of protection of the rights and interests. The focus on the protection of the rights and interests of the dormant investor lies in clarifying the relationship between it and nominal shareholder. Trust model and agent model in the current academic community to occupy the mainstream views. After a comparative analysis of these two models, the agent model has the advantages of suitable for China's national conditions, it maybe a suitable protection path for the dormant investor.The sixth part is mainly to put forward proposals to the protection of the rights and interests. It mainly includes from the dormant investor itself and to improve laws and regulations of these two aspects. The dormant investor's response is divided into before, during, and afterwards protection. The perfection of laws and regulations are mainly related to expand the interpretation of that rule of confirmation of shareholder's qualification and have a better convergence between agency model and the problem of dormant investment.