The Judgment Thought Of The Actual Investor’s Execution Objection Lawsuit

With the company’s position and role are becoming increasingly important.In order to regulate the operation of the company,the third paragraph of Article 32 of China’s "Company Law" clearly stipulates that the company’s shareholder’s name and other matters must be registered and publicized.Those who have not registered or changed their registration shall not confront the third party.However,the phenomenon of separation of the actual owner of the equity and the registered owner in commercial practice has never been poor,and there are many controversial cases arising from it.Regarding rights disputes between hidden shareholders and explicit shareholders,a solution has been provided in the "Company Law Interpretation(3)".However,there are no legal provisions on how to resolve conflicts of interest between actual investors and nominal shareholder creditors.In practice,there has been a debt dispute between a nominal shareholder and a third party.In order to realize their claims,the creditor applies to the enforcement court to enforce the equity under the name of the nominal shareholder,and the actual investor filed a lawsuit for execution objection on the ground of the equity holding agreement.Suspension of equity execution cases.Since the law and judicial interpretation do not clearly stipulate this,the judges ’opinions on such cases are also inconsistent.Judging from the judgment results of the category cases,the attitude towards whether or not to support the actual investor’s complaint against enforcement is roughly divided into two views: "affirmative" and "negative".The Supreme Court’s judgment on such cases is also one year A change,there is no guidance case to refer to.In November of this year,the Supreme People’s Court issued the "Explanation on the Application of Legal Issues in the Trial of Execution Dispute Cases(1)" draft,in which Article 13 proposed two opposite solutions to the handling of such cases.One kind of support for actual investors and one kind of support for creditors have caused widespread controversy in academia and practice,and it is still inconclusive.This article combines sums up their dispute focus and the judge’s point of view,peeks into the theoretical differences behind their disputes,and stands at the perspective of balancing the interests of creditors and actual investors.The referee made suggestions.This article mainly four parts.The first part focuses on three,including "CITIC Bank Co.,Ltd.Jinan Branch and the actual investor HNA Group Co.,Ltd." Focus on case disputes,summarize case models and refine legal focus issues.The second part focuses on the focus of the above-mentioned disputes,discusses the basic theory of case involved,and analyzes the theory of commercial externalism and commercial penetrating trial thinking.The third part is to summarize the judicial practice experience of the actual investors in the enforcement of objection litigation cases based on the relevant judicial interpretation,the "minutes of the national court civil and commercial trial work"(hereinafter referred to as the "nine minutes")and the "draft for comments" issued by the Supreme People’s court.The fourth part,from the perspective of balancing the rights and interests of ordinary creditors and actual investors,puts forward the judgment suggestions of the actual investor in the execution of objection litigation.First of all,we must follow the principle of right appearance,and at the same time,we should give full respect to the rights of bona fide creditors.Secondly,we should examine whether the actual investors have the actual civil rights to the subject matter of litigation and the agreement on behalf of shareholding Effectiveness and dormant shareholder status.The next step is to analyze the antagonism effect according to the effective time of the action for confirmation of rights,and pay attention to whether the creditor is in good faith or not,and whether the actual investor can prove that the creditor does not have reasonable trust interest,so as to judge whether the actual investor can block the creditor’s application for compulsory execution because he is the real obligee of the executed equity.