| In recent years,with the rapid development of China’s economic activities,the capital market has become increasingly prosperous,and the methods of investment have become more diversified.One phenomenon has emerged in a large number: investors choose to sign equity agency agreements with others instead of directly registering the company’s equity in their own name for various considerations.One of the problems derived from this is: when the creditor of a nominal shareholder brings an action to the court for enforcement against the equity of the nominal shareholder,can the actual investor block the enforcement? There are two opposite views in the academic community,but still focusing on normative research.Empirical research in the field of judicial practice is relatively rare.If the court takes a basically consistent standard in the trial process of such cases and the judgment result conforms to the principle of same case and same judgment,the research on this issue is of little significance;on the contrary,if the judicial judgment has not yet formed a unified scale,it is necessary to establish a unified judgment standard for such cases in order to maintain the authority of law and the fairness of justice.Therefore,this paper proposes to study this problem objectively and fairly from the perspective of legal norms,in order to provide a scientific and reasonable judgment standard for such cases.This paper retrieved all the legal texts that meet the keywords from the Chinese Judgment Document Network,supplemented by the "Wolters Kluwer · Legal Information Database",and finally obtained 486 cases as the actual research objects.Statistical analysis was conducted on the time,place,trial level,court,whether the actual investors have obtained the shareholder position,whether commercial formalism is applicable,and the judgment results of the cases.And then combing and analyzing the viewpoints of the scholars and the judges,it was found that the current problems are: First,the standards for determining the ownership of equity are inconsistent,and there is controversy over whether the actual investors are the real right holders of the equity involved in the case.Second,whether the scope of "third party" in Article 32 of the Company Law should be expanded to any third party,and whether the court should support it if the creditor of the nominal shareholder applies for compulsory execution based on ordinary money claims.Third,the application of the principle of commercial formalism should be limited,and there is generalization and abuse of commercial formalism in the current judicial practice,and the real rights of the actual investors have not been fully taken into account.The research conclusion is that,according to the current legal provisions,the actual investors should obtain the shareholder position in the ordinary subscription type equity transfer cases,the principle of commercial formalism should be reasonably limited,the scope of the third party should be expanded to any third party,and the real rights of the actual investors should be fully taken into account by the judicial authorities.This study found that the factors affecting whether the actual investor can resist the creditors of the nominal shareholder from the forced execution of the stock holding are comprehensive.Both affirmations and denials cannot properly protect the interests of the parties.Taking into account all the factors,the perfect judgment thinking should be:first,consider whether the actual investor is the real right holders of the stock involved;second,determine whether the creditors of the nominal shareholder are the trading counterparts of the stock involved;finally,consider whether the commercial facade principle is applicable.The exception is that the creditors of the nominal shareholder know that the stock involved is held by the nominal shareholder and deliberately transact with it. |
