A Study On The Objection Examination Of Actual Contributors In The Compulsory Execution Of Shares

In the case of the execution objection of the execution object is equity,the actual investor usually claims the enforcement of the application executor on the grounds that he enjoys the actual ownership interest of the equity.With the continuous optimization of China’s business environment,the market economy has achieved unprecedented development,the investment forms have become increasingly diversified,and the cases of equity execution are generally increasing year by year.Due to the existence of some problems in the current laws and norms,and the number of rights between the actual investor and the applicant executor loaded on the equity,a relatively unified review rules have not been formed,and the confusion situation in judicial practice.The objection review of the actual investor in the equity enforcement is a practical problem that needs to be solved urgently.The author in equity enforcement in the execution of this kind of lawsuit,with the aid of the written judgment network,Peking University retrieval tools,the Supreme People’s Court and the local higher people’s court to analyze related typical cases,trying to draw the outline of the current situation of the type of cases.Through the analysis of the factors that affect the judgment results,the omissions and deficiencies of the current legal norms are reviewed and corrected,and the optimization suggestions for the objection of the actual investor in the process of equity enforcement are explored,so as to handle this type of cases in the period and alleviate the phenomenon of different judgment of the same case.In addition to the introduction and conclusion,the text is divided into five parts:The first part is to sort out the judicial status quo of the actual investor’s objection review in the enforcement of equity rights.By comparing the relevant guidance documents issued by the local high people’s Court and sorting out the relevant typical cases made by the Supreme People’s Court and the local high People’s Court,it is concluded that the main dispute point of the actual investor’s objection examination at present is to judge whether the actual investor’s entity right to equity is enough to exclude the compulsory execution of the applicant.The people’s Court has formed two types of judgment for the disputed issues: one is to support the actual investor’s objection,which can exclude the compulsory execution;One is not support the actual investor dissent,can not rule out enforcement.At the same time,the relevant judgment basis is summarized.The second part puts forward the problems existing in the examination of the actual investor’s objection in the compulsory execution of equity rights: first,there are differences on the applicable boundary of the commercial externalism principle in the compulsory execution of equity rights;second,there are differences on the scope of the third party in the registration antagonism;third,there is a lack of clear and appropriate rules for the examination of the actual investor’s objection.Centering on the above three problems,this thesis studies the objection examination of the actual investor in the implementation of equity rights.The third part is to study the theoretical basis of the actual investor’s objection examination in the mandatory execution of equity rights.It mainly involves two aspects: one is to analyze the basic theory of the principle of commercial externalism,further clarify the concept,function and application conditions of the principle,and examine the current situation of the application of the principle of commercial externalism in the examination of the actual investor’s objection in the enforcement of equity rights.The principle of commercial externalism aims at protecting the legitimate rights of the bona fide third party who carries out legal acts based on the appearance of trusting right.The principle of commercial externalism should be applied carefully,not easy to expand indefinitely,and should be applied according to its applicable conditions.The second is to study the relevant basic theories of registration antagonism,further clarify the semantics of "third person" and "counterpart",and analyze the scope of "third person" in equity enforcement.The fourth part is the study of the right confrontation pattern of the objection examination of the actual investor in the implementation of equity enforcement,that is,the equity analysis of the priority of the actual investor and the nominal shareholder creditor.If the actual investor has already obtained the judgment document for determining the rights of the executed equity,the actual investor’s rights and interests are equity in nature,which takes precedence over the creditor’s rights of the nominal shareholders and creditors;If the actual investor does not obtain the alternative rights confirmation judgment document for the executed equity,the actual investor’s rights and interests are creditor’s rights,which are in the same order as the creditor’s rights of nominal shareholders and creditors.Therefore,it is necessary to use the principle of commercial appearance to determine the priority of rights and interests.The fifth part is to put forward optimization and improvement suggestions to the objection examination of the actual investor in the mandatory execution of equity rights.In view of the three problems existing in the examination of the objections of actual investors,the thesis puts forward a targeted and perfect plan: first,standardize the application of the commercial externalism principle in the mandatory execution of equity rights,and should be limited and limited to the bona fide contract creditors of nominal shareholders;Second,clarify the scope of "third party" in equity enforcement,and unify the application of relevant legal norms;Third,formulate appropriate and clear specific review rules,clarify the content of the actual investor’s objection review,and clarify the elements of the actual investor’s exclusion from compulsory execution.