Research On Cognizance Of Dormant Shareholders’ Qualifications

Along with the rapid development of the market economy,we can see more share-holding entrustments now,and some idle social capital can also use it to increase the way capital affects economic growth.But the ensuing disputes are also increasing,and China’s legal system is still far from sufficient for the regulation of dormant shareholders,in fact,there are only three relevant provisions of The Third Interpretation Of The Company Law which involves few problems about dormant partner,while it cannot cope with complicated situation commercial practice,and it is difficult to find a clear law basis to this problem,it also leads to different results of judgments and rulings in different law courts.From the perspective of the qualification of dormant shareholders,through the analysis of the legal background and typical cases,the theoretical differences and practical dilemmas are summarized,the necessity of the identification of the hidden shareholders is explored,and some suggestions are made for the establishment of its standards and the optimization of its procedures.Dormant partner refers to the person who has made the actual investment or subscribed the investment of the company,but has not obtained the status of shareholders completely because of not being recorded in the articles of incorporation,the share register or industrial and commercial administration bureau.The qualification of dormant shareholders is a combination of the identification of dormant shareholders and the way to display name,involving not only the relationship between the two parties to the shareholding agreement,but also multiple parties such as other shareholders,the company and the third party,and it is a dual determination of property and identity relationship.On the issue of identification,based on the analysis of the formal theory,substantive theory and compromise theory,and the comparative examination of the relevant legislation on the criteria for identification of shareholders in foreign countries,we choose the formal theory with exception as the criterion for identification,and in principle,the nominal shareholders are deemed to have the qualification of shareholders,and their shareholder status is identified only after the dormant shareholders apply for the displaying of their names and complete the displaying procedure.In addition,the diversified formal elements may also bring conflicts to the identification,and the information of registration in the industrial and commercial agency should be taken as the only formal basis.On the issue of the way of displaying,from the perspective of the conditions for displaying,the choice of litigation mode and the definition of the scope of appearance doctrine,analysis dormant shareholders who request for the displaying when they are in the suit for confirmation of shareholder qualification or the suit for enforcement objection.It is proposed that the formalized standard,i.e.,whether to obtain the consent of more than half of the other shareholders,should not be used as the only condition for displaying,and whether displaying will cause the erosion of corporate personality should be examined in substance.Finally,as the basis of share-holding entrustment relationship,share-holding entrustment agreement should be improved,and its formal regulation and the limitation of liability should be clarified,and notarization is helpful,too,it helps reduce disputes at the source.Learn from the German equity opposition registration system,give dormant shareholders the right to comment on equity,break the appearance of rights acquired by nominal shareholders due to industrial and commercial registration,and reduce disputes arising from third-party acquisitions in good faith.Then share-holding entrustment could be regulated and guided,and maintain the order of transactions.