Research On The Effectiveness Of Holding The Execution Of Implicit Equity In Compulsory Execution

With the rapid development in nowadays,large and small companies have become the main force to promote social and economic development.China’s Corporation Law stipulates that shareholders should register.However,in order to encourage the development of market economy,increase the diversity and flexibility of investment and show more respect to the autonomy of the parties,the third interpretation of the Company Law of China recognizes the legality of the equity proxy agreement and allows actual investors to invest in the form of dormant shareholders without registration.Nevertheless,it leads to the separation of name from subject of equity because the actual investors invest in the way of dormant investment.Therefore,in judicial practice,when the general creditors of nominal shareholders apply for dormant equity,the actual investor will usually raise an objection from the outsider to protect his rights and interests.The actual investors usually use the "stock ownership agreement with the nominal shareholders" and "the actual capital contribution certificate".as evidence to claim the ownership of the equity in the name of the nominee shareholders to protect the shareholders’ rights.The execution applicant would also propose that his rights and interests should be protected as bona fides third party according to the principle of objectivism of commercial law based on his trust in the information of industrial and commercial registration.Therefore,the court is in a dilemma facing such disputes.Should the rights and interests of the actual investors be protected by materialism or the execution applicant should be protected by objectivism?The academic circle has a different understanding of the "third person",and the law does not clearly define the scope of the "third person".In this case,should all the general creditors of the nominal shareholders are included in the "third party" to protect the transaction in strict accordance with commerci?Or should the "third party" be limited to the scope of "transaction with nominal shareholders" according to the third party in the property law in accordance with the essence and the interpretation of the "third party",that is,the nominal shareholders pledge their equity and other ACTS to exclude the protection of other creditors?Not only that,actual investors in our country often put forward in the lawsuit to confirm their shareholder qualification,because the law on whether the anonymous shareholders have shareholder qualification to be clear,which is one of the key factors of the dispute whether the anonymous equity can be enforced.In the judicial decisions on the above issues,the discretion of the judge is very wide,so that many cases of the same type come to the exact opposite decision.This article will combine the supreme people’s court of the final decision of the relevant cases,summarize the causes of the problem,and find out the source of the problem,and then in the principle of fairness,put forward the author’s point of view.This paper includes the following parts:The first part starts with the verdict of the Supreme people’s Court to point out the questions and the focus of related disputes in the form the case analysis.That is,whether the dormant shareholder is entitled to shareholder’s qualifications,whether the "third party" referred to in Article 32(3)of the Corporation Law includes a non-trading third party,and whether the actual investor can prevent holding of execution of nominee equity when participating in the production and operation of the company.The second part is the core of this paper,which answers the above questions by means of theoretical analysis,and concludes that dormant shareholders should be protected through classifying completely dormant shareholders and incomplete dormant shareholders.The third part puts forward the following suggestions:(1)We should adhere to the principle of commercial appearance and propose the dormant equity registration system(2)the dormant shareholder naming procedure should be completed(3)Definition of "third party" in Article 32 of the Corporation Law should also be strengthen(4)The prerequisites for the enforcement of dormant equity should be stipulated.