Research On The Antagonism Of Dormant Shareholders’ Rights In Enforcement

The current relevant judicial interpretations have formulated a unified judgment standard on the effectiveness of the equity holding agreement.However,there is no clear standard for other problems caused by entrustment shareholding.The background of this paper is limited to the scope of limited liability companies and discusses whether dormant shareholders can exclude the enforcement of general creditors under entrustment shareholding.Since the implementation objection stage usually adopts the principle of formal review which judges the ownership by industrial and commercial registration,dormant shareholders often can only file a lawsuit for implementation objection to defend their rights.Due to the fuzziness of the current provisions,there is no unified view of the judicial judgment in practice,and there is a situation of similar cases without similar judgment.Most judges adhere to rechtsschein’s theorie and focus on protecting the interests of general creditors.Rechtsschein’s theorie aims to protect the reasonable trust interests formed by the counterparty to the appearance facts.For the industrial and commercial information registered by shareholders,the general creditors of nominal shareholders may trust the performance ability of nominal shareholders in the transaction stage and the enforceability of property under the name of nominal shareholders in the execution stage.The trust in the transaction stage is not worth protecting because it does not fall into action.In this sense,the general creditors of nominal shareholders do not belong to the "third party" as mentioned in paragraph 3 of Article 32 of the company law.It is legitimate to follow the principle of the formal review to improve the efficiency of execution.However,in the lawsuit of execution objection,we should return to its essence,pay attention to substantive justice,and start from the perspective of examining what rights dormant shareholders have on the execution of equity and whether this right is sufficient to exclude the execution of general creditors.In the judgment of the rights of dormant shareholders,given that equity is a right with both identity and property attributes,it should be further determined whether they have confirmed the shareholder qualification or have the possibility of confirming the shareholder qualification under the condition of real holding agreement and actual capital contribution of dormant shareholders.According to whether the dormant shareholders are dormant to the company,the types of dormant capital contribution can be divided into complete dormant occasions and incomplete dormant occasions.At the same time,considering whether the dormant shareholders can be recognized by the company,we can judge whether the dormant shareholders can enjoy complete equity or only the rights based on the holding contract.After clarifying what kind of the rights enjoyed by the dormant shareholders in the entrustment shareholding,since the execution basis for the general creditors of the nominal shareholders is the general money debt,the dormant shareholders can exclude the execution of the general creditors when they are approved by the company to enjoy the complete equity.When it is impossible to confirm that the dormant shareholders enjoy the equity,the dormant shareholders only have the right to claim the investment income based on the contract with the nominal shareholders.Because of the principle of equality of creditor’s rights,the dormant shareholders’ request to exclude execution should not be supported at this time.