| In today's active market transactions,holding of shares on behalf of others has become a common business model in companies' operations,and disputes caused by holding shares on behalf of others are not uncommon.Among numerous disputes over entrusted holding of equity,the application of law to the bona fide acquisition by a third party in the entrusted holding of equity is a key issue to be discussed in cases involving entrusted holding of equity.There has been controversy over the bona fide acquisition by a third party in a case regarding entrusted shareholding in the academic and judicial fields,but there is no clear theoretical guidance.Taking the lawsuit of objection to execution as the breakthrough of this paper,the rationality of the bona fide acquisition of the third party in shareholding is proved by the proof of the commercialism theory of right appearance and the trust in the principle of publicity.Starting with resolving the differences and contradictions in judicial practice,this paper tries to construct the rules of law application which can be used for reference in the future judgment of this kind of cases.With a view to facilitating the correct application and understanding of the law,analyzing the confusion in the application of the law,and better mitigating and balancing the conflicts between actual contributors and creditors of nominal shareholders.This article emphatically analyzes the understanding and application of Paragraph 3 of Article 32 of the Company Law.The definition of a bona fide third party,the application of the commercialist theory of appearance of rights,and the connection between a bona fide acquisition by a third party and an action of objection to enforcement in an action of shareholding.The thesis consists of four parts.:First of all,it talks about the dispute of the execution of share in the litigation of share holding.Start with the classical cases,discuss and analyze the disputes involved in equity enforcement in the cases,and come to the issues that need to be discussed in the papers,that is,the application of law to bona fide acquisition by a third party in litigation over equity holding,which starts from the stage of enforcement over equity holding,that is,whether a third party can obtain the equity held by a nominee shareholder in good faith for enforcement.Summarize and summarize cases in which a creditor applies for enforcing the equity held by a nominal shareholder on its behalf,namely two types of cases: 1.the nominal shareholder of a company may resist the enforcement of the equity held by the creditor against the nominal shareholder on its behalf;and2.the creditor of a nominal shareholder may apply for enforcing the equity held by the nominal shareholder on its behalf.The court shall also focus on analyzing the reasons for the different judgments in the same case.Secondly,through the case show cut into the second part of the article,the article is also the main point of analysis which is fundamentally the issue concerning the understanding and application of Paragraph 3 of Article 32 of the Company Law.The author focuses on analyzing the definition of the third party set forth in Paragraph 3 of Article 32 of the Company Law and whether the bona fide acquisition of equity held by the third party shall be determined according to the theory of appearance of rights under commercial doctrine.In terms of determining the third party,the third party is divided into the third party in broad sense and the third party in narrow sense in the theoretical and practical circles,while the third party in broad sense refers to the third party involved in the equity transaction with the nominal shareholder and the general creditor,while the third party in narrow sense only refers to the third party involved in the equity transaction with the nominal shareholder,and the author is in favor of the statement of the third party in broad sense.In terms of the application of the theory of appearance of right under the commercial doctrine,Paragraph 3 of Article 32 of the Company Law emphasizes the irresistibility of industrial and commercial registration,that is,the principle of publicity and public trust,stating whether a third party is supported and protected by the law based on its reliance on the appearance of right,that is,acquiring the equity held by a nominal shareholder on behalf of a third party through the theory of appearance of right.Thirdly,the case sorting method is adopted to analyze the evolution path of a bona fide third party in an action of objection to enforcement,elaborate the theory of distribution of burden of proof,put forward the viewpoint of distribution inversion of burden of proof of a bona fide third party,and analyze and explore the rationality of the application of bona fide acquisition of equity by a third party in entrusted holding from the perspective of procedural law.It also extends to the judgment of shareholder qualification and the judgment of the third party with good intentions in the action of execution objection.In practice,whether it is the application and understanding of the theory of the appearance of commercial right or the definition of the third party,the origin is the difference in understanding and application of legal rules and principles.Because of this,the judgment of the court on the shareholder's qualification and the bona fide third party in the cases of stock right holding in trust often has the opposite situation.Finally,is to the article summary and the induction.Through the investigation of the judicial opinions obtained by the third party in good faith,this paper probes into the contradictions and disputes in the process of the court's discretion,and analyzes and discusses these contradictions and disputes from the perspective of legal basis.From the aspects of perfecting the confirmation system of shareholder qualification,defining the category of obtaining the third party in good faith,and using the principle of fair appearance of commercial right,we hope to provide long-term suggestions for the judicial judgment in the future. |
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