Study On The Legal Issues Of Protection Of Dormant Investors' Rights And Interests

In China's social and economic activities,the phenomenon of anonymous investment exists in large numbers,and it becomes a basic means of capital investment and capital operation.It has a positive effect on encouraging investment and developing the economy.From a legal point of view,the behavior of dormant investment is in line with the freedom of contract and the autonomy of the parties,enriching the way of investment.But the dispute caused by the anonymous investment is also increasing.The judicial interpretation three of company law has made relevant provisions on the phenomenon of dormant investment,and it is response to real economic life,which indicates the formal recognition of our legislation for anonymous investment.It is only make regulations on the effect of dormant investment agreement,the nominalization conditions for anonymous contributors and the stock right transfer.But it avoids mentioning the specific confirmation of dormant shareholder qualification and how to protect their rights in practice.In addition,although it affirms that the dormant investor has investment rights and interests,it is not clear whether the investment rights and interests include the right of management in addition to the income of asset.and what kind of rights can be enjoyed by the invisible investor are not explained.In China's judicial practice,there are no systematic norms and laws to guide the confirmation of shareholders'qualification of a dormant investor and the disputes concerning rights and interests'protection,which leads to different referee results in the same case.It will not only cause the confusion and injustice of judicial decisions,but also make the rights of dormant investors in the actual disputes can't be well protected,which may weaken the enthusiasm of their investment and is not conducive to the development of the socialist market economy.Therefore,it is particularly important to study the dormant contributors' shareholder qualification and the protection of rights and interests.Only in this way can we coordinate various legal relations in the dormant capital contribution,balance the interests of all parties,and mitigate the adverse effects brought by the lack of law and the unification of the trial.The innovation of this paper is putting forward a dormant shareholder' qualification criteria-modified form theory,which is different from "form theory","essence theory" and "difference theory",on the base of analysis on the current legal status of dormant investment.Because of that under the hidden state of anonymous contributors,the protection of their rights and interests is crucial to their rights,this article tries to analyze the rights of anonymous contributors from three aspects of nature,content and exercise,and believes that trust mode should be adopted to ensure the exercise of their rights.In addition to the preface and conclusion,the text is divided into five parts according to the main line of the protection of dormant investors' rights and interests.The first part is the basic theory of the protection of dormant investors' rights and interests.The part explores the legal contacts between the anonymous investors and the other shareholders of the company,the company and other shareholders,and the third people outside the company.It also analyzes the advantages and disadvantages of three theories,namely "form theory","essence theory”and "difference theory",all lays the foundation for the dormant contributors' shareholder qualification and the protection of rights and interests.The second part is the legal status of the dormant contributors in foreign country.The analysis of the Anglo-American law system and the continental law system has great reference for the establishment of the dormant contributors' shareholder qualification.The third part is the legal status of the dormant contributors in China.In this part,the legal status of anonymous contributors is discussed from two angles of legislation and judicature.It not only analyzes the attitude of today's law to the dormant investors,but also analyzes the different standards adopted by different courts for identifying the qualification of shareholders of dormant investors from a judicial case.Finally,on the basis of our laws and foreign laws,the standard of the dormant contributors'shareholder qualification-modified form theory is formed.The fourth part is the identification of the dormant contributors' shareholder's qualification.After proposing the standard of the dormant contributors' shareholder qualification-modified form theory,this part mainly analyzes how to put forward the evidence in practice in order to ensure the confirmation of the shareholder's qualification.The fifth part is the exercise of the rights of anonymous contributors under the incognito state.The reason why anonymous investors choose to invest in concealed names is because they do not want to "expose" their identity.This part analyzes the rights of dormant investors in the dormant state,and expounds three aspects from nature,content and way of exercising their rights.