The Analysis On Legal Qualification Of Foreign Dormant Shareholders

Since the company since the establishment of system, dormant investment phenomenonhas always been concerned. With the development of economy, dormant investment disputesespecially foreign field of dormant investment disputes emerge in endlessly. But as a result ofthe lag of legislation and conflict, for a long time, people’s courts at various levels foreigndormant investment disputes caused by judge scale, standard is differ, for a time get intoconfusion. Although the2010years of the supreme people’s court on the trial of enterprisewith foreign investment disputes the provisions of a certain number of problems (a)"foreigninvestment enterprises in the dormant shareholders and nominal shareholders’ relations hasmade certain regulation, but the content is not perfect, lead to the people’s court in practiceconstantly confused, and foreign dormant investment in domestic enterprise which caused bythe shareholders in the qualification cognizance of the history again follow the embarrassingposition. Therefore, the comprehensive exploration foreign dormant shareholdersqualification question, no doubt to company law theory and practice has the importantpractical significance.The paper is divided into five parts except for the introduction and the conclusion:The first part, from the author in the trial practice experience or learning two cases toknow foreign dormant investors dormant investment two kinds of situations, thus elicitforeign dormant investment in domestic enterprise cases can obtain dormant shareholderstatus of the problem.The second part, foreign dormant shareholder’s concept, characteristics and types ofpaper. Through the dormant shareholders and foreign dormant investment concept analysis,this paper put forward the concept of foreign dormant shareholder to make the basic definition,and foreign dormant shareholders is different from general dormant shareholdercharacteristics were expounded. In addition, the author’s own practice, according to foreigndormant investment of different types, the judicial practice of the common foreign dormantshareholders are divided into two categories, namely dormant investment in "joint ventures"dormant shareholders and dormant investment in domestic enterprise of dormant shareholders.At the same time, the paper believes that foreign dormant investment in domestic enterprise,belong to a kind of non-standard foreign investment. The third part, foreign dormant shareholders qualified theory and practice expounds view.This part of the lessons from the theoretical circles on the dormant investment shareholdersqualified three theories: substantial requirements said, form elements and the differencebetween said, and at the same time, the judicial practice about foreign dormant shareholdersqualification point of view on the induction. Through this part of the paper, foreign dormantinvestment of shareholders the qualification cognizance of the problem has a deeperinterpretation and analysis.The fourth part, to our country current about dormant shareholders qualified laws andregulations or legal documents review and neat, the paper puts forward the currentspecification, including the law and judicial interpretation, foreign dormant investment indomestic enterprise and cause of shareholders counterpoising truly problem did not makeclear a regulation, on the legislation like a blank of suspicion.The fifth part, combined with the supreme people’s court on the trial of enterprise withforeign investment disputes the provisions of a certain number of problems (a)", to practiceconcrete determination foreign dormant shareholders need to consider evidence and fact aresummarized, and summarizes the court foreign dormant shareholders confirmed lawsuitprocessing opinion. At the same time, the author also has the judicial practice of theimplementation of the rules (a)"difficult to make paper, especially put forward since the rules(a) of regulation is not perfect, leading to domestic enterprises with foreign dormantinvestment shareholders qualification lawsuit" history to follow ", give a trial practice bringconfusion. According to the confusion, this paper put forward some bold conception, in orderto "something", to academic circles and judicial practice field to put forward a thinkingdirection.