The Empirical Study On The Ownership Of The Entrusted Shareholding In The Lawsuit Against The Execution

The main parties directly involved in the lawsuit against the execution of the entrusted equity include not only the actual investor and nominal shareholder in the shareholding entrustment relationship,but also the applicant and the executee in the execution dispute.When the interests of different subjects are in conflict,the existing legislation fails to provide sufficient judgment basis,which leads to the inconsistency of judgment logic and great differences between different courts in judicial practice on the issue of whether anonymous shareholders can exclude the applicant’s execution of the entrusted shareholding.Through empirical research,there are three main problems in the judicial judgment of the courts at present: first,some courts pay more attention to one party in the internal or external relations,ignoring the legitimate rights and interests of the other party,which is manifested in ignoring transaction costs and protecting the interests of the executors with the principle of fairness and justice,or denying the realistic needs of entrusted shareholding,paying more attention to trust protection and protecting the interests of applicants.Second,due to the omission of legislation,the courts are confused about the entitlement and exercise of rights,and the judgment of the relationship between equity and shareholder status,which leads to differences in the courts’ understanding of the ownership of internal equity,and it is difficult to accurately determine what rights anonymous shareholders enjoy in the internal relationship of entrusted shareholding agreements.Third,the court has differences on the boundary of trust protection of the applicant.Facing different types of transaction relations between the applicant and the executee,the court has different arguments on the trust interests enjoyed by the applicant on the equity involved in the case.Even if the basic legal relationship is of consistence,the judgment results are not consistent.Therefore,in order to clarify whether the anonymous shareholder has the right to exclude the applicant’s execution of the entrusted shareholding,it is necessary to study the nature and attribution of rights between the anonymous shareholder and the nominal shareholder,as well as the application and boundary of trust protection between the applicant and the executee.To guide the judgment logic of the lawsuit concerning the objection to the execution of the entrusted shareholding,we should comprehensively analyze the internal and external problems in it.First of all,in the internal relationship,the court should determine whether the shareholders’ qualification belongs to the dormant shareholders and the specific direction of the anonymous shareholders’ rights according to the application of the parties and the evidence given,and judge whether the dormant shareholders have the expected benefits of becoming prominent shareholders of the company.Secondly,in the external relationship,the court should examine the factors such as the formation time of right and external relationship type,analyze whether it meets the applicable conditions of trust protection,and judge whether the applicant enjoys trust interest in holding the equity according to the transaction relationship types such as joint guarantee,private lending and equity pledge formed between the applicant and the executed person,and the difference between the equity holding behavior and the formation time of the transaction relationship.Finally,the court should consider the problems in internal and external relations comprehensively,analyze the facts concretely,respect the differences of cases on the basis of adopting a relatively unified judicial position,such as investigating the holding purpose of anonymous shareholders and the organizational form of the target company,and make a fair and reasonable judgment on whether the equity involved in the case should be enforced.In order to achieve the goal of fair judgment,the court should treat all subjects equally,analyze the problems from the basis of the right of claim,and combine the“same judgment in the same case” principle with respect for individual differences to realize the organic unity of the interests of the parties and the whole society.At the same time,the legislature should make clearer provisions on the confirmation of shareholders’ rights and the applicable fields of trust protection,so as to provide clearer and operable standards for judicial adjudication.