Reseadrch On Share-holding Entrustment Against Action Of Execution By Creditor Of Nominal Shareholder

As a special investment method,entrusted equity holding is reflected in the separation of the company’s anonymous shareholders(hereinafter referred to as "actual investors")and nominal shareholders.Nominal shareholders do not actually contribute capital,but are shown in the company’s internal legal documents and external industrial and commercial registration information;the actual investor fulfills the shareholder’s capital contribution obligations and does not appear as the company’s shareholder under the aforementioned internal and external conditions.Such legal relationship has spawned relevant legal disputes,among which the legal relationship arising from the claim of the nominee shareholder’s creditor to the court for the right to hold shares on behalf of the nominee shareholder is the most complicated and full of legal disputes.When the contemporary shareholding is subject to an application for enforcement by the creditor of the nominee shareholder,can the right of objection to execution exercised by the actual investor as the nominee shareholder as an outsider can prevent the shareholding from being enforced? At the legislative level,my country has not clearly stipulated the aforementioned issues for quite a long time since the promulgation of the Company Law.Until the promulgation of the "Company Law Judicial Interpretation III",the company’s equity holding was mentioned for the first time in the frontier of legal theory and practice.The Judicial Interpretation regulates the interest claims among the actual investors,nominal shareholders,company creditors,and counterparties who have equity transactions with nominal shareholders through just a few articles.However,in the past ten years,judicial practice has still not unified the understanding of the legal nature of equity holding,and there are many disputes in its application.To study this issue,the legal basis involved includes the promotion of transaction theory in civil law and the legal basis of disposition without right,acquisition in good faith;it also covers the theory of commercial appearance in commercial law.The above-mentioned theoretical basis is intertwined,so that the external confrontation effect of proxy stockholding needs to be studied and analyzed in combination with legal theory,including: first,confirm the ownership of the proxy equity,and the subject holding the proxy equity has the right to exclude the outside of its equity.Second,it is more worthy of protection whether the creditor of the nominal shareholder can claim that it has a reliance interest because it does not understand the nominee holding relationship behind the equity,but only through the externally publicized commercial rights of the nominee holding the equity.The creditor side of the nominee shareholder believes that the actual investor has not registered externally,and the third party’s reliance interests are protected according to commercial appearance,and enforcement cannot be ruled out;Shareholding transactions do not fall within the scope of the "third party" protected by the principle of commercial appearance,and cannot claim the rights and interests of holding shares on behalf of others;thirdly,dispute settlement where the actual capital contributor of the shares held on behalf of others is inconsistent with the subject matter of the external industrial and commercial registration.The mechanism is reflected in the "Company Law",which is reflected in the absence of industrial and commercial registration and the inability to fight against third parties.The determination of the third party here involves whether or not to absorb the creditor of the nominal shareholder as a subject that cannot be confronted,which directly affects whether its enforcement can be excluded;finally,it is necessary to weigh the actual investor and the creditor of the nominal shareholder.The nature and demands of rights and interests,and from the social orientation and other external aspects to make a value judgment.Therefore,this paper intends to combine the above disputes and differences,conduct theoretical demonstrations through multiple dimensions,and find a relatively clear solution to this problem.