Study On The Legal Issue Of Dormant Stockholders

Dormant stockholder phenomena is common in companies, it exists in many types such as management type(dormant stockholder acts as senior manager and play important rule in company),principal investment type etc. Though there are different definition of dormant stockholder in the theory circle, researchers often agree that,dormant stockholder is a natural person, or legal person, or other organization,who invest on company, take the stock right and assume the corresponding obligation, but he don't be recorded in the investment certificate, register of stockholders, articles of association, industrial and commercial register, or company's annual year-end. Usually there are six basic characters of dormant stockholder:(1)validity; (2) the contract signed by dormant shareholders and registered shareholders is regarded as a consensual, bilateral, paid principle, informal contract; (3)hidden their identity; (4) priority rights of their investment; (5) limited liability and risk; (6)not to oppose the kind third person.We can divide dormant stockholder into several types according different standards. With validity standard, the aim of dormant stockholder can be divided into evading the law or not; With the standard of whether there is a agreement between registered stockholder and dormant stockholder, dormant stockholder can be regarded as dormant stockholder with agreement or not. With standard of whether taking the right of stockholder, dormant stockholder can be divided into absolute dormant stockholder and relative dormant stockholder.Through comparing the system of dormant stockholder in countries of continental legal family and common law system countries, it shows all countries banish the single standard and pay attention to consider several standards together, such as practical investment, articles of association, register of shareholder, industrial and commercial register etc. Legal status is the core of the legal relation, legal relation is the external embodiment of legal status. Though the motivations of stockholder's investment are different, but they should be at the same legal status. Based on analyzing the legal status of dormant stockholder, the paper describes kinds of legal relation about dormant stockholder,such as legal relation between company and dormant stockholder, legal relation between stockholder and the third person, legal relation between dormant stockholder and apparent shareholders. With analyzing the legal relation, the paper includes the disputes caused by dormant stockholder and gives out the following viewpoint:in solving the disputes, besides the principle of good faith, Principle of Public Order and good morals, prohibition of abuse of right doctrine, we also obey principle of freedom of contract to solve the disputes between dormant stockholder,apparent shareholders and company; obey business appearance of right, Demonstrative principle principle of protecting the interests of the third party acting in good faith to solve the external disputes of company.With the above description and analysis, the paper put forward some suggestions on perfecting the system of dormant stockholder in our country:1,establish system of protecting the right which keep stockholder's identity hidden or not, establish standard mechanism of dormant investment.2,give clear definition in law for dormant stockholder and endow the contract signed by dormant stockholder and registered stockholder with legitimacy.3,establish the system of protecting the interests of the third party acting in good faith.4,establish joint and several liability between dormant stockholder and registered stockholder.5,establish sanction System to avoid dormant stockholder's legal obligations maliciously.6,establish rules of evidence for dormant stockholder's action of confirmation.The aim of this paper is to be conductive in the way of perfecting our legal system concerning dormant stockholder, because legal system can provide theoretical basis for company operation and judicial practice in solving problems caused by dormant stockholder.