| When the creditor of the nominal shareholder applies for the compulsory execution of the registered equity due to the creditor’s rights not formed based on equity transactions in the limited company,whether the actual investor can prevent the compulsory execution of the registered equity is a long-discussed but pending problem in theory,and also a difficult problem that has long troubled judges in judicial practice.Due to the lack of clear and extended provisions on the legal nature of hidden investment,the ownership of registered equity,the application scope of commercial externalism and the "enough to exclude the civil rights and interests of compulsory execution" in the litigation of dissent by outsiders,such cases are frequently different in judicial practice.Therefore,it is urgent to improve the relevant protection system and unify the judicial standards.In order to solve the problem of whether the actual investor can prevent the implementation of the hidden investment,the author searched and collected the relevant cases,and carried out research on this problem by using the methods of case analysis and normative analysis.The research of this paper mainly focuses on the following six parts:The first part is the introduction.This paper introduces the blocking points and difficulties in the legal system and the chaos in the judicial practice,and expounds the theoretical and practical value of the research.This paper combs out the relevant literature of the problem of the implementation of the actual investor and comments on it.This paper introduces the research ideas and methods,and points out the shortcomings of this paper.In the second part,the author studies the phenomenon and reasons of different judgment in the execution cases of the actual funders.Through specific cases,two completely different judgment views in judicial practice of such cases are shown to reveal the insanity of the court’s judgment reasoning,and the reasons for the difference of judgment and the insanity of judgment reasoning are examined and analyzed from the level of legal norms.The third part studies the legal nature of hidden investment and the ownership of registered equity.The legal nature of implicit capital contribution and the ownership of registered equity are the logical premise to solve the problem discussed in this paper.In this part,the author analyzes the various theories of the legal nature of the dormant contribution and points out the differences between them and the present legal system and the practice model of the dormant contribution.Try to use the new standard to reinterpret the type of implicit capital contribution,and discuss the ownership of registered equity on this basis,to make a theoretical foundation for the discussion in the following paper.The fourth part studies the conflict of rights and interests between the two parties in the case of outsider execution objection brought by the actual investor.This paper makes a theoretical explanation of the conflict of rights and interests in the litigation of the execution objection of outsiders,discusses the outcome of the conflict of rights and interests between the actual investor and the nominal shareholder and creditor under different states,and points out that the cause of the residual dispute lies in the scope of application of commercial externalism.The fifth part studies the application of commercial externalism in the case of the actual investor’s resistance to execution.This paper explains the fit between commercial externalism and the action of execution objection by outsiders,demonstrates the non-imaginary existence of trust interest of bona fide nominal shareholders non-equity transaction creditors and the legitimacy of applying commercial externalism,and makes clear the specific requirements of applying commercial externalism in the case of actual investor blocking execution.The sixth part puts forward some suggestions to solve the problem of the actual investor’s blocking the implementation.From the definition of the scope of the "third party" in Article 32 of the Company Law,the establishment of the shareholding objection registration system,and the optimization of the execution sequence of money execution of creditor’s rights liability property,this paper puts forward a perfect scheme to solve the problem of the actual investor’s resistance to execution. |
