外商隐名投资纠纷的司法困局——以一起行政诉讼为切入点

The Plight of Shareholder Rights Litigations Involving Foreign Dormant Investors——A Case Study on an Administrative Litigation

《关于审理外商投资企业纠纷案件若干问题的规定(一)》针对外商隐名投资纠纷的处理确立了新的制度,明确在获得审批机关同意等条件下司法机关可以作出确权判决,其实质是将外资审批机关的外商准入审查引入民事诉讼程序,实现行政权与司法权在这类案件中的相互配合。然而司法实践却暴露了诉讼过程中当事人对审批机关的异议机制缺失的新问题。司法机关审理外商隐名投资纠纷的困局,根本上是由我国实行外商准入审批制造成的,审批制向备案制的转变将从根本上解决此类案件的司法困局。

Provisions of the Supreme People＇s Court on Several Issues concerning the Trial of Disputes Involving Foreign-Funded Enterprises（I） provides for shareholder rights litigations involving foreign dormant investors, stipulating that a dormant investor＇s claim for confirming its status as shareholder may be upheld when the approval of the examination and approval organ has been obtained which, in nature, combines administrative examinations to civil litigations. However, lack of mechanism for the parties to challenge the examination,has been revealed through practice. The major reason of the plight is the examination and approval system as the market access of foreign direct investment, which shall be replaced by record management.