| The dormant investment is universal phenomenon in legal practice of Limited Liability Company in our country. Dormant investors contribute capital to the company in the name of another person. Because of the lack of formal requirements, dormant investors are not the shareholders expressly prescribed by law so that their legal status is in a state of uncertainty for a long time. Who are the real shareholders,the dormant investors or the nominal shareholders? When the dormant investors and the nominal shareholders battle over the rights and interests, this question is previous and important before improving disputes of dormant investment? Someone who have the shareholder qualification is entitled to the right of shareholders and can fulfill the obligation of shareholders. The shareholder qualification has a great influence on people in the dormant investment.The legal status of dormant investors is not expressly prescribed in the Company Law of China. The judges don’t have the clear standard about the identification of shareholders’qualification in dormant investment. In trial practice different judges have different standards in this problem. This is not conducive to the legal system’s unification.In academic circles the discussions on identification of anonymous investors’ shareholder qualification in limited liability company is fierce. There are a kind of theories about this question, the essence theory, the formal theory, the discrimination theory. According to the analysis, the author find the flaws in these theories. The author tend to the formal theory for the legislation standard as the only standard because the formal theory is more in line with the value of efficiency and security needs in the commercial activities.In 2011, judicial interpretation 3 of the Company Law of China legislated by the supreme court in which there are a number of provisions involving the legal regulating of the dormant investment. However, the interpreter adopts the principle of pragmatism to avoid the problem of equity ownership as far as possible which led to the confusion of logic. Because judicial interpretation 3 of the Company Law is a kind of dispute settlement mechanism, it is difficult to fundamentally solve the problem of dormant investment. This article is to clarify the issue about identification of dormant investors and nominal shareholders and find the clear relationship between them so that the law can safeguard the legitimate rights and interests of dormant investors and maintain the trade order and safety.The author tries to analyze the trust relationship and use the function of equity trust to construct the legal relationship in the dormant investment. The author tries to indicate the equity trust can modify the defects in dormant investment and solve the problem of identification of anonymous investors’ shareholder qualification in limited liability company, effectively regulate the relationship between dormant investors and nominal shareholders.The legal relationship of anonymous investor and the nominal shareholder in dormant investment is equivalent to the principal (the beneficiary) and the trustee in the trust legal relationship. The anonymous investor transfer the trust property, namely equity, to the nominal shareholders who managed and disposed of equity. After the construction by equity trust, the nominal shareholder own the ownership of the share. The nominal shareholder owes a duty of faith for dormant investors. The trust system guarantees the rights and interests of investors in investment. The registration system and the right of revocation in trust help dormant investors to clear the relationship with another person.The author comprehensively use of empirical research method, comparative research methods and normative analysis method in this paper. |
