A Study On The Exclusion Of Enforcement By Dormant Shareholders

In the context of the state’s request to solve the problem of enforcement,courts at all levels actively pursue the efficiency of civil enforcement and have achieved many results.However,China pursues the judicial concept of separation of trial and execution.The allocation of executive power that separates enforcement implementation from execution review determines that the executive organ can only judge the ownership of the subject matter of execution according to the principle of publicity and public trust of real right,and cannot examine the ownership of the subject matter of execution in essence.However,the real life situation is complex,and there are often inconsistencies between the apparent ownership and the actual ownership of the property.The proxy shareholding agreement is a typical case.When the court enforces the equity of the debtor,that is,the nominal shareholder,it may infringe on the substantive rights and interests of the actual investor.At present,there is no clear provision on the enforcement of nominal shareholders’ equity in China’s legislation.The relevant provisions are not perfect,and judicial interpretation is being issued to solicit opinions from the society.Through the study of several typical cases,this paper finds that there is no uniform standard for the judicial organ to determine whether the actual investor can be excluded from enforcement,which leads to different judicial results of the same problem in the judicial practice.This will not only affect the credibility of the court,but also lead to the rights and interests of the parties can not be effectively protected.In order to solve the problem of whether the dormant shareholders can eliminate the enforcement,we should start with their basic ideas and relevant systems.First of all,the proxy shareholding agreement and equity transfer guarantee have been recognized by the law.There is no problem with the basis of the claim right of all kinds of dormant shareholders.In this case,this paper carries out the research on the exclusion of enforcement of dormant shareholders.In the first chapter,the author analyzes the value of research on this issue.It is the requirement of our country at the present stage to solve the problem of difficult execution.Moreover,there are more and more such cases in recent years.However,the court still has great differences on this issue,and the disputes on this issue need to be solved,The second chapter analyzes the judgment point of view,and finds that in addition to policy factors and value considerations,the controversy mainly focuses on what is appearance doctrine,and under what circumstances the principle of appearance doctrine should be applied.The following is a specific analysis,and the third chapter,the author analyzes the relevant theories of the exclusion of enforcement by dormant shareholders,makes clear what is the bona fide third party,and studies the origin of the principle of externalism.It is found that it develops from the maintenance of transaction security,so it is suitable for this principle It should also be applied in the context of transaction,that is,in the case of equity transaction,for the trust interests protected by the bona fide third party,it should be applied when it has the appearance of rights.The fourth chapter makes a concrete analysis of the rules of the dormant shareholders’ exclusion of compulsory execution in practice.There are various situations of dormant shareholders in practice,such as registration by name,holding shares on behalf of others,guarantee of equity transfer,equity trust,etc.except in the case of equity transaction between the obvious shareholders and their creditors,the dormant shareholders have no right to exclude compulsory execution,which can be applied in other cases In other cases,such as ultra vires agency and denial of corporate personality,the responsibilities of dormant shareholders and obvious shareholders need to be analyzed in combination with the specific situation.Moreover,it is not enough to know under what circumstances compulsory execution can be ruled out.We also need to know the remedies for the compulsory execution of equity,that is,the remedies for the compulsory execution of equity of dormant shareholders in Chapter 5.At this time,we need to use the system of raising objection to execution and raising objection to execution.