Research On The Protection Of Rights And Interests Of Dormant Shareholders

In equity generation hold, how to protect the lawful rights and interests of investors has always been argued about in academical and practical departments. Among China’s current laws and regulations of the dormant investment, the judicial interpretation of three company law is the highest law in the current legal status. It is embarrassing that there is no law of dormant investment. And the current situation is that the academical departments do not reach consensus, and in practical departments there are a lot of regional differences and different sentences even on the same case.This thesis adopts inductive method,summarizing approach and contrast, comparative analysis and other research methods, and then analyzes, inducts,and summarizes the current ideas and theories on the basis of consulting a large number of related literature at home and abroad, then puts forward the suggestions on protecting of dormant shareholders’rights and interests’protection.Except preface and conclusion, this article has three parts.The first part mainly elaborates the basic problems in the protection of the rights and interests of shareholders in our country. In this part. First of all, the thesis makes some explanations and clarifications on the similar concepts which appear in nominal holding of shares.It also explains the reason why we use "dormant shareholders", "shareholder" instead of "actual investor" and "nominal shareholders" in judicial interpretation. And then it classifies the dormant shareholders on a certain standard by analyzing the cause of the dormant investment. According to the scope of the dormant shareholders,it divides the dormant shareholders into two parts:completely hidden shareholders and not completely hidden shareholders, and makes a further discussion on the basis of this.Secondly, the thesis states the present situation of the dormant shareholder rights and interests protection. It also analyzes the relevant regulations of shareholder rights and interests protection that appeared in law judicial interpretation three dormant law, which came in 2011. Besides, it sorts the instructions which were issued by people’s court combing judicial practice in different regions and then puts forward that system lack is the main reason why the current dormant shareholder rights and interests can not be protected well.Finally the thesis summarizes main problems that exist in the protection of the rights and interests of shareholders. They can be divided into four parts:the legal relationship of dormant investment, shareholder’s qualification on dormant investment,the effectiveness of the dormant shareholders when they transfer stock equity, and tax risk of dormant investment.The second part in the thesis is mainly about the examples of extraterritorial dormant shareholders’ rights and interests protection. It selects some laws and regulations of protecting shareholders’interests and rights from some representative countries in Anglo-American law system and continental law system countries. By studying the the laws and regulations in those countries, it concludes that the laws and regulations in Anglo-American law system can satisfy the real needs of the dormant shareholders’ legal rights and interests protection, and is worth using for reference.This third part of the thesis mainly expounds the perfection of dormant shareholders’ rights and interests protection system in China. At first,it suggests that try to establish risk warning system under the circumstances that the current legal system is not perfect. Then,it analyzes the feasibility of establishing systems for share rights trust in our country. And it puts forward that the share right trust system will be the most effective method to solve the problems of protection dormant shareholders’ rights and interests. Moreover, this thesis avoids the traditional research thought, takes problem oriented principle, and puts forward he major obstacles to set up the stock right trust system directly. Finally, combining with the status quo of the current judicial environment and economic development of our country,the thesis offers some proposals on how to solve the problem on equity trust registration and tax equity trust.