| In my country,the phenomenon of entrusted shareholding is relatively common.Although nominal shareholders in their own name perform capital contributions to the company and enjoy shareholder rights,the actual contributors are other people.This structure of rights brings about the fact that when the monetary creditor of the nominal shareholder applies for compulsory execution of the equity held by the nominal shareholder,the actual investor often raises an outsider objection to the subject of execution,and files an enforcement objection lawsuit after the outsider objection is rejected.The question that arises from this is whether the actual investor has a right to exclude the enforcement of the application of the nominal shareholder’s money creditor in the enforcement objection action.With regard to this issue,the current legal norms in my country are not clear,and although such cases are generally on the rise in judicial practice,there are still differences in the reasons for adjudication.Theoretical disputes are mainly reflected in the scope of application of commercial externalism and the nature of the rights of the actual investor.Since commercial externalism is not applicable to the enforcement procedure,and the protection of trust by the nominal shareholder’s money creditor is not necessary,and the actual investor has civil rights and interests that are enough to deny enforcement,the actual investor can exclude the application of the nominal shareholder’s money creditor from enforcement.However,in order to achieve the effect of the actual investor excluding enforcement,it is necessary to meet the requirements of identity and legality.On the premise that the actual investor is a dormant shareholder and the entrusted shareholding is legal,the actual investor may exclude the nominee shareholder’s monetary creditor’s application for compulsory execution in the enforcement objection action.In addition,on the improvement path,the meanings of "third party" in Article 32,paragraph 3 of the Company Law should be further clarified,and actual investors should be encouraged to use the trust system to reduce the risk of entrusted shareholding being enforced. |
