| With the development and prosperity of the economy and society,the phenomenon of equity acting is not a new thing,and the anonymous investment has been much common.Ordinary creditors of anonymous shareholders(hereinafter referred to as creditors)apply for the execution of equity under the name of anonymous shareholders due to other his rights and debts,and the anonymous shareholders file a case of objection for execution by an outsider,demanding the suspension of execution of the equity,and requesting confirmation that the equity is actually invested by themselves,and the anonymous shareholders do not enjoy the equity.In practice,it has become a difficult problem to balance the rights and interests of creditors and anonymous shareholders as to whether implicit equity should be executed or not and whether Rechtsschein theorie should be applied.Several issues concerning the application of the Company Law of the People’s Republic of China(hereinafter referred to as the Company Law Judicial Interpretation(3))is a preliminary answer the effectiveness of the equity holding phenomenon of share acting agreement and anonymous shareholders dispose implicit equity issues,does not address this equity should or not be enforced,dose not solve the problem of the anonymous shareholders of ordinary creditors cover or not in the Company Law of the People’s Republic of China(hereinafter referred to as the Company Law)in the third clause of article 32 of the column of "third person".In addition,when judging the rights and interests confrontation between creditors and anonymous shareholders,the court did not distinguish between the concepts of "ownership of equity"and "shareholder qualification",so it led the problem of "ownership of equity"to that of"shareholder qualification",which led to the dilemma of mutual interpretation between the two concepts.According to the large number of cases,this paper tries to put forward such a solution:first,on the basis of distinguishing the ownership of equity and shareholder qualifications,judge whether the anonymous shareholders enjoy ownership of equity.Because the characters based on shareholders,the incomplete anonymous shareholders who participated in the management of the company enjoy the equity ownership.Then,after the anonymous shareholder enjoys the ownership of the equity,the judgment of the confrontation between the anonymous shareholder and the creditor’s rights just getting start.It can be divided into two aspects,one is the understanding of registration antagonism,the confrontation between the general creditor’s right and the ownership of the hidden equity is not same wtih Register antagonism,unless the creditors get equity guarantee.The second is whether Rechtsschein theorie can be applied to the litigation of execution of the objection.According to the consideration of the constitutive elements and imputation principle of Rechtsschein theorie,it is found that although the registered equity shares have the appearance of rights,the creditors also have "trust",but their trust does not meet the standard of reasonable trust required by Rechtsschein theorie.Furthermore,the anonymous shareholders are at fault for causing the non-conformity of the registered name of the equity,but their behavior has assumed the risk of equity being lost under the bona fide acquisition system,so they should not be re-evaluated.Therefore,Rechtsschein theorie should not be applied.The"third person" stipulated in the third column of article 32 of the Company Law does not cover ordinary creditors,and the anonymous shareholders who participate in the operation and management of the company can’t be executed. |
