A Study On The Application Of Creditors To Implement The Equity Of Anonymous Shareholders

Under the rapid operation of market economy,the company’s position has become increasingly prominent.Although the company law stipulates that the company should be registered,in the actual operation,many investors,for various reasons,are unwilling to "show up",and take the actual ownership of their own shares registered under the names of other shareholders,which are owned by prominent shareholders.However,the actual owner of the equity should be an anonymous shareholder.In practice,creditors who appear as nominal shareholders can not pay off their debts when the nominal shareholders expire,and apply to the court to enforce the shares of anonymous shareholders registered under the name of nominal shareholders.At this time,the anonymous shareholder,after the written objection to execution was rejected,lodged a suit against an outsider for execution of the objection to the court.Anonymous shareholders usually use "equity ownership agreement" and "actual capital contribution" to prove the true ownership of their rights to execute the subject matter,requiring confirmation of shareholders’ qualifications and cessation of enforcement.On the principle of commercial externalism,the creditor requests the court to continue the execution of the subject matter.Therefore,when the court hears such disputes,in the face of the conflict between the rights of the actual investors and the rights of the creditors of the prominent shareholders,what provisions does the law have for them and how to protect them? Although the Company Law of our country stipulates that shareholders are not registered and do not confront third parties.However,it is still uncertain who the third person refers to.In this case,the principle of commercial externalism is used as the basis of judgment,and creditors are included in the protection of third parties.Or from the perspective of the actual investors,combined with the provisions of bona fide third party in property law,to limit creditors to "transaction"(this article refers to equity transactions)and exclude the protection of creditors? What kind of judgment basis should the referee follow in order to arrive at a judgment that conforms to both legal principles and respects commercial practice? Neither in theory nor in judicial practice has there been a consensus.Based on the typical cases of the Supreme People’s Court and the High People’s Court(hereinafter referred to as "the Supreme Court","the Supreme Court"),this paper analyses the focus of their disputes,explores the substantive issues behind their disputes,and seeks for the rules of adjudication for such disputes.From a fair point of view,the author tries to solve the protection of the rights and interests of "anonymous shareholders" and "third party",and puts forward his own opinions with a view to providing suggestions for judicial practice.This article mainly through the following four parts to discuss:In the first part,three typical cases,such as Wang Mou,Liu Mou and Zhan Mou,which were judged by the Supreme Court and the Supreme Court,are taken as the starting point of the paper,and the focus of the case dispute is summarized.That is,whether the creditor is the "third person" referred to in paragraph 32,paragraph 3 of the Company Law,whether the principle of commercial externalism is applicable to the enforcement procedure,and whether the anonymous shareholders can block the creditor’s application for enforcement on the grounds of "equity holding agreement".The second part focuses on the above-mentioned controversial focus,and makes a jurisprudential analysis of the scope of the third party,the application of commercial Externalism in the execution procedure,the reasons for obstructing compulsory execution and the reasons for different referees.The third part mainly draws the following enlightenment suggestions.(1)In practice,there may be collusion between the third party and the registered shareholder,which maliciously damages the interests of the investor.This requires the adjudicator to carefully apply the principle of Externalism in the hearing of special enforcement objections involving anonymous investment,and to regard the subjective need of the third party as the prerequisite for its application in good faith.(2)The application of the principle of externalism should be adequate and the relevant provisions of judicial interpretation should not be ignored.(3)The rights and interests of dormant shareholders and third parties should be balanced.The judge is required to protect the third party while recognizing the anonymous contribution,and the creditor belongs to the scope of the third party.(4)If the anonymous shareholders do not want to suffer such loss of interests and avoid unnecessary disputes,they should further enhance their awareness of legal risk prevention.