| As dormant investment becomes more and more common,disputes it caused are accordingly increasing.Company Law and The Juridical Interpretations(III)of Company Law did not actually evaluate the validity of nominal shareholders’ disposal of equity.So according to the dualistic system of property rights in civil law,this paper will separately discusses the effectiveness of equity disposal contract and the effect of the equity disposal behavior.This paper analyzes cognizance issues of the shareholders’ qualification in dormant investment relations,based on the concept of company equity and equity transfer,combining with relevant laws,regulations and legislative cases at home and abroad.At the same time,the paper explores the effectiveness of the nominal shareholders’ disposal of equity by combining with the The Juridical Interpretations(IV)draft of Company Law.Since equity transfer is a kind of the transfer of ownership,therefore the disposition contract of equity shall be subject to the relevant provisions of the sales and purchases contract.Nominal shareholders hold shares legally under the doctrine of appearance,and they consequently have the legal status of shareholder qualification.The actual investors merely enjoy the rights and interests of their investments confirmed by law.In the relationship of dormant investment,actually,nominal shareholders is the real shareholders of the company,and enjoy the full rights both of identity and property.Hence,it is valid for the nominal shareholders to exercise the right of disposition,Accordingly,it exists the logical basis contradiction with the system of good faith acquisition.Looking forward to this paper may help the study of the problem in both aspects of theory and practice.The first part of the paper mainly analyzes the problems such as the disputes arising from the relationship of dormant investment,the causes of these disputes and the necessity of solving the problems on the validity of nominal shareholders’ disposal of equity.By means of introducing cases and questions,the paper discusses the purpose and significance of the research.Moreover,this paper expounds the research status at home and abroad,methods and the innovation points of thesis.The second part of the paper mainly defines and analyzes the nature of the nominal shareholders’ disposal of equity,on the basis of presenting several essential questions such as the concept and the classification of dormant investment,as well as the overview of equity and equity transfer.Equity is a comprehensive right including both aspects of the property right and identity right.Equity transfer is a trading behavior on equity,and is the unity between changes in shareholders’ qualifications and transfer of shareholders’ rights.The third part of the paper chiefly analyzes The Juridical Interpretations(III)of Company Law in purpose of explaining the legislative status quo of nominal shareholders’ disposal of equity and dissecting the attitude of judicial interpretation and expounding the elementary path of nominal shareholders’ disposal of equity which is the dualistic structure of property rights in civil law.The Juridical Interpretations(III)of Company Law actually didn’t stipulate the nature of the validity of nominal shareholders’ disposal of equity,meanwhile,the good faith acquisition system didn’t approve that the ex right disposition is valid.The forth part of the paper primarily discusses the effectiveness of the contract of nominal shareholders’ disposal of equity.Equity disposal contract is a kind of right transfer contract.According to The Juridical Interpretations of sales contract,it shall be governed by the relevant provisions of the sales contract.Simultaneously,this part discusses the specific situation that the contract of nominal shareholders’ disposal of equity shall apply to the Art.52 in the Contract Law from both perspectives of subjectivity and form.Moreover,this part expounds as well that the equity transfer is invalid when it impairs the right of first refusal of shareholders in accordance with The Juridical Interpretations(IV)draft of Company Law.The fifth part of the paper mainly analyzes related problems on the behavioral effectiveness of nominal shareholders’ disposal of equity.In consideration of the essential issue of qualification of shareholders and learning from foreign legislation,this paper adopts the doctrine of essence among the numerous domestic theoretical doctrines.In the view of the above,nominal shareholders enjoy the legal qualification of shareholders and nominal shareholders should have the right to dispose the equity.Hence,the good faith acquisition system is inapplicable for this issue.The sixth part of the paper mainly puts forward relevant suggestions for the system of nominal shareholders’ disposal of equity,such as clearing the cognizance standard of shareholders qualification,perfecting the legal norms which stipulate nominal shareholders’ disposal of equity,deleting the clauses which stipulate that this issue shall apply to the good faith acquisition system,etc. |
