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A Study On Law Application Of Share-holding Entrustment In Dissent Action Of Execution

Posted on:2019-01-27Degree:MasterType:Thesis
Country:ChinaCandidate:X X LiuFull Text:PDF
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With the increasingly development of investment market,there is more and more share-holding entrustment in the corporate area.In recent years,there are more and more such disputes in the case of share-holding entrustment: when there is legal dispute between the nominal shareholder and the third party in which the transaction is not subject to the equity,the third party applies to the court to enforce the equity registered in the name of the nominal shareholder,then the actual contributor thinks that the equity should belong to himself and raise the objection to the object of execution,which is called execution objection.The actual contributor or a third party shall make further objection to the judgment made by the court after the court has made a ruling on the execution objection,then the judicial proceeding was driven to the dissent action of execution of outsider or dissent action of execution of execution applicant.The execution objection system and dissent action of execution are both the mean for execution relief.The court is supposed to focus mainly on a formal review in execution objection proceeding which means execution objection raised by the outsider,the actual contributor here,will be rejected according to the equity registration information.In the case of dissent action of execution,on one hand,a formal review as in the execution objection proceeding would not be accepted anymore,on the other hand,the anticipative functions of dissent action of execution request that it is not applied to determine the ownership of the object.The kernel of review of the court in this proceeding is to find out whether the outsider is actually entitled to exclude or stop the execution of the execution applicant,that is to say,whether the actual contributor is actually entitled to exclude or stop the execution of the execution applicant of the creditor of nominal shareholder.Most of existing studies on share-holding entrustment almost concentrate on effectiveness of the share-holding entrustment agreement,legal nature of share-holding entrustment structure,identification of shareholder qualifications,or the protection to the actual contributor,but scarce on the judicial rules on which side shall be given the priority between actual contributor and creditor of nominal shareholder in the perspective of dissent action of execution.Such cases are not uncommon in judicial practice while there is a great dispute between the court and the judge.In one's opinion,the “shareholder” may not oppose the third party without the registration of the authority and the court should reject the execution objection of actual contributor or permit the creditor of nominal shareholder executing the equity registered on his name.In the other's opinion,the interests of the actual contributor will be impaired when permitting the creditor of nominal shareholder executing the equity.Furthermore,there is actually no transaction relation between this creditor and nominal shareholder while he cannot be included in “the third party” who is given priority under the reliance protection rules of appearance of rightThe existing rules for determining shareholder qualifications can only be used to solve the internal relation problems of the share-holding entrustment structure but cannot intervene in situations involving third parties.There are incongruities among the articles of Provisions of the Supreme People's Court on Several Issues Relating to Application of Company Law of the People's Republic of China(III).Even if the conflict of articles have been eliminated after the constraining interpretation has been interpreted,Bona Fide Possession cannot be applied here in that the creditor wouldn't access to the equity directly,even if would,the action of the creditor to execute is not the change of equity right caused by non-juristic acts.Therefore,it is urgent to explore a judicial way to resolve disputes involving share-holding entrustment in dissent action of execution,which helps to provide reference for judicial practice departments,to achieve the proper coordination among local court judges,and to reasonably guide market investment behaviors.This thesis held that the reliance protection rules of appearance of right are proven to take the role for resolving such disputes mentioned above.In reviewing the elements of the Appearance of Rights Rule,the existence of such an appearance fact as nominal shareholder was registered as the shareholder of the equity,which was directly attributed by actual contributor's reasoning power,and if a general creditor of a nominal shareholder has good faith in such appearance facts,the creditor should be given priority protection.Adhering to the “appearance criteria” would also have its practical significance,including helping to achieve the efficiency value of execution procedures,carrying out the principle of commensurate benefits and risks,and harmonizing with the basic orientation of the judicial authority on share-holding entrustment.
Keywords/Search Tags:Share-Holding Entrustment, Execution Objection System, Dissent Action of Execution, Bona Fide Possession of Equity, Reliance Protection Rules of Appearance of Right
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