On The Right Of Dormant Shareholders In Limited Liability Company To Request Recovery Of The Shareholder’Rights

A dormant shareholder means that the investor’s information is not included in the industrial and commercial registration,the company’s articles of association,the shareholder register,etc.,but it has actually made capital contributions and reached an agreement with others through a shareholding agreement.The dormant shareholders have the following four characteristics.First,the dormant shareholder is the shareholder who actually contributes capital to the company;second,the dormant shareholder borrows the names of others to make capital contributions;third,the relevant information of the dormant shareholder is not recorded in the industry and commerce In the registration,the articles of association,the register of shareholders,etc.;fourth,there is an agreement to hold shares on behalf of the dormant shareholder and the prominent shareholder.When a dormant shareholder makes a request for the restoration of shareholder rights,there is a proxy holding relationship between the dormant shareholder and the prominent shareholder.According to the content agreed in the proxy holding agreement,there will be different bases for the claim at this time.It is the trust contract relationship,the partnership contract relationship,the entrust contract relationship and the loan contract relationship.When the dormant shareholder requests to restore the shareholder rights between the dormant shareholder and the company,the dormant shareholder needs to base the claim on the basis of the contract and confirm the ownership.When there is a transfer relationship between the dormant shareholder and the third party,the basis of the right of claim is the same as that of the controlling shareholder;when there is a dispute between the named shareholder and the third party,the basis of the claim right is based on compensation for losses.The right to claim;when there is a dispute between the silent shareholder,the named shareholder and the company’ s creditors,the silent shareholder and the named shareholder shall bear the joint liability within the scope of the unpaid capital interest.China does not have a complete trust system like Anglo-American law countries,so it can protect the related rights and interests of dormant shareholders in legislation,which can be improved from the following four aspects:First,clarify the concept of dormant shareholders and give them anonymity a clear legal status of shareholders.Categorize dormant shareholders-avoid legal dormant shareholders and non-circumvention dormant shareholders,agreement dormant shareholders and non-agreement dormant shareholders,fully dormant shareholders and incomplete dormant shareholders,in order to facilitate the handling of judicial cases is more targeted;second,the substantive conditions for the dormant shareholder’s request for the restoration of shareholder rights are refined,and the shareholding agreement should not violate the prohibition provisions of laws and administrative regulations,and the dormant shareholder has actual capital contribution if more than half of the other shareholders of the company know the facts of the actual capital contribution and have not raised objections,the company shall promptly record its name or name,capital contribution and other relevant information in the company’ s articles of association,shareholder register,etc.In the document;third,when dealing with disputes related to third parties outside the company,the formal elements are used to balance the rights and interests of all parties,and when the disputes with the company are handled,the substantive elements are used to balance the rights and interests of all parties;finally,use the provisions of the "Civil Code" on entrustment contracts to resolve issues related to dormant shareholders.