A Study On Legal Problems Of Dormant Stock Right's Civil Enforcement

The limited liability company's equity can be the subject of enforcement has been accepted by the theoretical and judicial circles.However,the provisions on equity enforcement in the “Company Law of the People's Republic of China ”(hereinafter referred to as the “Company Law”)and its judicial interpretation and the Supreme People's Court's “Provisions on Several Issues Concerning the Enforcement of People's Courts” are not perfect at present,and there are still many gaps to be filled.In particular,the legal issues on the enforcement of anonymous stock rights have greatly troubled the judges who undertake the judgment and enforcement work.When the creditor of the nominal shareholder requests the court to execute the equity registered in the name of the nominal shareholder based on the creditor's right against the nominal shareholder determined by the effective judgment,the actual investor usually causes the execution court to terminate the enforcement of the equity involved in the case through such forms as action filed by a third person on the subject matter of enforcement or a lawsuit for confirmation of the shareholder's qualification.This brings about dual legal problems of entity and procedure: first,whether the actual investor can resist the entity judgment of the execution application of the nominal shareholder creditor;The second is the procedural choice of whether the outsider(the actual investor)is allowed to choose other ways to relieve his own rights besides the lawsuit of the outsider's objection.In the process of entity judgment,the judge has two positions in the face of the actual investor's request for suspension of execution and confirmation of rights: one is to protect the fiduciary interests of nominal shareholders' creditors to registered appearances on the basis of the principle of right appearance(article 32,paragraph 3,of the company law)or the system of bona fide acquisition of equity(article 25 of the supreme people's court's regulations on certain issues concerning the application of the company law of the people's Republic of China(III),hereinafter referred to as the “judicial interpretation of the company law III”);The second is to protect the actual investor according to the actual ownership of the equity.The above-mentioned position has been criticized for misreading the trust interests of creditors and the nature of action filed by a third person on the subject matter of enforcement.This thesis proposes that the judgment on whether the actual investor can resist the creditors of nominal shareholders should be divided into two steps: First of all,the actual ownership of the anonymous stock right is examined.If the actual investor is the real owner of the anonymous equity after examination,then the conflict of interest between the nominal shareholder creditor and the actual investor in the enforcement is measured.In the choice of relief procedure,whether the outsider(the actual investor)is allowed to choose other ways to relieve his own rights besides the action filed by a third person on the subject matter of enforcement,this thesis holds that no matter from the nature of the right of appeal or from the provisions of the civil procedure law,there is no sufficient reason to restrict the litigant's right of appeal.Of course,the outsider can relieve his legitimate rights through other ways besides the lawsuit of the outsider.However,in order to better safeguard and develop the lawsuit of the outsider's objection to execution,the outsider should be encouraged to consciously choose the lawsuit procedure of the outsider's objection to execution through a good system design,so as to highlight the special procedural value of execution relief.