Research On The Actual Contributors’ Exclusion Of Entrusting Equity Enforcement

Under the background of diversified corporate investment forms,equity entrustment,as a kind of investment mode,generally exists in the commercial field of China.Among them,the actual investor can exclude the name of the creditors of equity enforcement,theory and practice has been discussed for many years,but still failed to reach agreement,the current law is not clear,the practice at all levels of court referee scale still not consistent,the same case is frequently,to be unified referee rules,standardize the judge discretion,enhance trial predictability,realize class case processing result justice.This paper takes the dispute in theory and practice as the starting point,and further puts forward the current normative path to solve the problem through the study of the specific problems of entity and procedure.This paper is divided into five parts.The first part is an overview of the issue,listing the legal provisions involved and the focus of disputes,selecting three typical cases in judicial practice and summarizing the judgment views.The second part discusses the qualification of shareholders in the equity entrustment.First of all,the legal nature and effect of the equity entrustment agreement are determined.On the premise of determining the validity of the agreement,the actual investor should be judged after classifying the actual investor,and finally the judgment that the incomplete anonymous investor involved in the operation of the company can obtain the shareholder qualification.The third part discusses the issues of the priority protection of the interests of the actual investor and the applied executor,and makes clear that the actual investor will not have the ability against the compulsory execution of the applicant;in the case of shareholders,etc.The fourth part focuses on the analysis of the procedural conflict and selection problems involved in this problem,and discusses the time of the execution of the objection and the execution of the shareholder qualification confirmation.If the actual investor has obtained the shareholder qualification confirmation judgment before the creditor applies for execution,the compulsory execution can be excluded.If first brings the lawsuit of execution objection,although the actual investor can file the lawsuit of shareholder qualification confirmation,it should suspend the lawsuit and wait for the result of execution objection.At the same time,the problem can broaden the future solution path by clearly allowing the actual investor to directly file the action of execution objection,issuing clear legal norms,and clarifying the combined trial of the action of execution objection and the confirmation of shareholder qualification.The fifth part summarizes the conclusion of this paper.