执行程序中权利外观优先保护之检讨——以名义股东股权被执行为例

Review on Prior Appliance of Right Appearance in Execution Procedure

名义股东的债权人请求法院执行登记于名义股东名下的股权时,实际出资人通常会提出异议,并请求确认其股东资格。学界普遍认为此时应该以效率优先为理论基础,保护债权人的利益。司法实践中也以我国《公司法》第32条第3款为依据,确保债权人对于登记外观的信赖利益。在我国,除非有善意取得等特别规定,股权登记只具有对抗效力,不能作为信赖登记的第三人被保护的理由。而《公司法》第32条第3款只是登记对抗主义的规定,法院将其作为依据确保债权人的信赖利益是一种误读。执行程序中股权权属的认定,不应坚持外观主义原则,而应该回到实质主义逻辑上面,即股权归属于实际出资人,但是前提是该权属应该得到公司(其他股东)的认可。

When the creditors of the nominal shareholders request court to perform the shares registered in the name of the nominal shareholders, the actual investors usually object and request to confirm the qualification of shareholders. Academic circles generally believe that the priority of efficiency should be as the theoretical basis in this case, to protect the interests of creditors. In the judicial practice, the third paragraph of article thirty-second regulated by The company law of the People＇ s Republic of China is used as a basis in the trial to ensure the reliance interests of creditors for trusting registration. In our country, equity registration only has the effectiveness of confrontation, thus a trust registered third people could not be protected based on believing registration, unless there is a bona fide and other special provisions. And the third paragraph of article thirty-second regulated by the company law of the People＇ s Republic of China is just the registration confrontation doctrine provisions. It is a kind of misreading that the court take the provisions as the basis in the trial to ensure the the reliance interests of creditors. In the program of execution, identification of share ownership should not be guided by the principle of appearance, but should be conducted by the Essence of Capital contribution. Namely that equity is attributable to the actual investor, but the premise is that the ownership should receive the recognition from the company, other shareholders.