| From an economic perspective,the decomposability and tradeablity of property right directly determines the divisibility of interests and responsibilities.Dormant investment encourages investment and promotes trade,and brings about all kinds of disputes at the same time,affecting not only the safety of transactions but also the shareholder status and the rights and interests of investors.Filing a lawsuit to confirm their identity,and even "display their name as shareholders" to grasp the fate as investors becomes the most choice of implicit shareholders.At present,laws and regulations about dormant shareholders who want to display their names as shareholders in limited liability company is not that abundant in PRC.There are only judicial explanations of Supreme People's Court and the judicial policy of the higher people's court in various places,providing solutions for the dormant investment disputes.However,the lack of integrity architecture and systematic design in laws and regulations of dormant investment,makes it actually necessary to make a systematic and in-depth study on the problem of implicit shareholders who want to display their name as shareholders in limited liability company.This paper focuses on collecting and classifying analysis on official documents,guide cases and bulletin case material of all levels of the people's court in China about implicit shareholder of limited liability company,through retrieval cases in Peking University Law Case Database to analysis the problems of current implicit shareholder in China's judicial practice,in order to find solutions by balancing the legislative power,judicial power and the autonomy of subjects to provide relief way and protect the rights and equity of dormant shareholder.This paper consists of five chapters:The first chapter mainly expounds the theoretical basis of dormant investment and dormant shareholders who want to display their name as shareholders.After analyzing the law structure and the basic characteristics of dormant investment,the discrimination of concepts of "dormant shareholder","actual investor" and "implicit sponsor",and three doctrines about whether dormant shareholder has the qualification of shareholders,this paper insists that the concept of "dormant shareholder" is more advantageous for perfecting the ways of dormant shareholder to ask for displaying their name as shareholders.It is believed that we should recognize conditionally the possibility of dormant shareholders obtaining shareholder status and give dormant shareholders the right of claiming for displaying.The second chapter mainly talks about theoretical basis of dormant shareholders claiming for displaying their name as shareholders.The Article 24 of Corporation Law Judicial Interpretation(3)has solved the attribution of investment rights and interests of the dormant investment,but also lead that the investment rights and interests and shareholder qualification respectively belong to dormant shareholder and nominal shareholder which makes it hard to make sense in China's existing legal framework.Therefore,this article analyzes and contrasts the legal nature of dormant investment separately from three dormant investment relations theories of the equity trust,equity agency and dormant partnership.The author believes that equity trust theory is better for perfecting the ways of dormant shareholder to ask for displaying their name as shareholders,to realize dormant shareholders' filing for status identity of the shareholders,through a clear understanding of the dormant shareholder rights' basis.The third chapter analyzes and evaluates the relevant judicial cases of dormant shareholders asking for displaying their name as shareholders in China.Through retrieval cases related to dormant shareholders filing for displaying their name as shareholders in Peking University Law Case Database,with the cause of action of " shareholder qualification dispute ",from January 2006 to February 2017,it turns out to be a total of 754 cases.After excluding repeat cases and cases without substantial contents,it gets 471 cases for preliminary statistics after the first round of screening,for analyzing the judicial status quo of the problem of dormant investment in China.Next,after eliminating cases not involving the dormant shareholder in limited liability company filing for displaying their name as shareholders,it gets 246 cases as the final sample of this paper.Finally,with study on the nine key factors of "whether to display or not","the form of dormant investment " and "whether approved by more than half of the other shareholders ","whether invest actually invested ","the actual meaning of the parties to take stake ","the behavior of actual participation in company or the exercise of shareholders' rights known by other shareholders","the industrial and commercial registration","the registration in shareholders list or the company's articles of association","investment certificate" and other court ruling basis in the above 246 cases,the author want to sum up out the current on the holistic characteristic and trend of judicial rulings of dormant shareholders in limited liability company filing for displaying their name as shareholders and discover the existing problems and possible reasons.The fourth chapter mainly studies on substantive law and regulations from basic law and judicial interpretation,and the higher people's court judicial policies in Shanghai,Beijing,Jiangsu and other places respectively in China,then evaluates the relevant procedural rules of dormant shareholders in limited liability company filing for displaying their name as shareholders.It is found that there are a series of problems such as focusing more on equity issues rather than qualification of shareholders,identifying the real intention of investors with different standards,fuzzy legal consensus about dormant investment,confusing "equity confirmation" with "equity changes" and so on.The fifth chapter tries to put forward consummates suggests for dormant shareholders in limited liability company filing for displaying their name as shareholders in China on the basis of the first four chapters.At first,it is important to make it clear that solving the controversy processed by dormant shareholders filing for displaying their name as shareholders should balance the relationship among private law autonomy,economic rationality and the judicial intervention,according to the actual circumstances of cases,to decide whether to allow the parties to show names or not.Besides,the paper suggests using trust system to transform the investment legal relationship with the good experience of other countries,making it clear of the conditions of the requirements and the concrete rules of claiming for displaying their names as shareholders in limited liability company,through the analysis of the effectiveness of different shareholders qualification evidence.Finally,under the premise of the balance of characters based on shareholders in limited liability company and protectionof shareholders,the paper tries to put forward the concrete ways for dormant shareholders asking for displaying their name as shareholders under the equity trust relationship: on the one hand,if dormant shareholders are allowed displaying their name as shareholders,they can do so through terminating the equity trust and transferee the equity;if dormant shareholders are not allowed displaying their name as shareholders,dormant shareholders can realize the dormant equity exit by transferring the equity to registered shareholders or the other shareholders;if registered shareholders or the other shareholders do not transferee the equity,the dormant shareholders can obtain the equity and transform to registered shareholders. |
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