Research On Legal Issues Of Equity Pledge Repurchase

In May 2013,the “Procedures for the Management of Stock Pledge Repurchase Transactions” was issued,indicating that China's stock pledged repurchase transaction has taken initial institutional basis.The Shanghai Stock Exchange and the Shenzhen Stock Exchange have started the equity pledged repurchase transaction.For several years,the equity pledged repo transaction has become an important financing channel.However,there is no definite theory as to whether the creditor's repurchase right in the "Stock Pledged Repurchase Agreement" should belong to the security property right,and then there is confusion in the legal provisions regarding the establishment and entry into effect of the equity pledged repo.A study was conducted on the legal relationship between existing loans and guarantees reflected in the two-time settlement of equity pledged repurchase transactions,combined with the purpose of equity pledged repurchase and the“business management approach”,which can enforce the repurchase rights.The stipulations of the warehouses stipulate that the rights of equity pledged repo should belong to the category of security property rights,and the realization of the creditor's right to guarantee the skills also has the dominance of property rights.Of course,this conclusion has,to a certain extent,broken through the statutory status of real rights stipulated in Article 7 of the Property Law.However,the statutory principle of real rights is faced with severe challenges in today's rapid economic development.The voice of the statutory easing principle of property rights in the academic world is increasingly rising.Especially with respect to newly emerging forms of collateral rights,this is not necessarily an emerging security interest,but it can be considered as a new form of traditional concessionary security.It has the nature of a security interest and the law should recognition.And recognize the property rights of equity pledged repurchase,reflecting the nature of equity pledged repurchase,improve the effectiveness of guarantees,help to improve transparency of publicity,ensure the security of transactions and help reflect the fair value of the guarantee,protect the repurchase Right holder's legal rights.Therefore,in the establishment of equity pledged repo,the general rules applicable to the establishment of equity pledges include the entry into force of the contract and the entry into force of the rights.However,at present,there are confusion and contradictions in setting legal norms for equity pledges.Combined with the analysis of the nature of contracts and the theory of real right changes,the establishment of equity pledged repo should also adopt the principle of distinguishing between the effective of property rights and the separation of contracts.That is,the equity pledged repurchase contract should have promise,that is,the contract shall become effective immediately;and the equity pledged repurchase will take effect ofregistration.The property rights of pledged repurchase rights are not inconsistent with the tenet of statutory doctrine of real rights,but they must be publicized in a suitable manner.The implementation of the statutory principle of real rights depends on the operation of ancillary systems such as property rights publicity.The operation of this type of system,in turn,increases the transparency of information and reduces the time it takes for investors to search for information,thus ensuring the security of transactions.cut costs.Therefore,on the registration of equity pledged repo,under the guidance of the current information disclosure system,the repurchase right is registered.For listed companies,they shall follow the "Measures for the Administration of Securities Registration and Settlement";for unlisted companies,"Company Law","Property Rights Law","Administrative Measures for Securities Registration and Settlement" promulgated by the Securities Regulatory Commission,and "Administrative Measures on Registration of Stock Bonds issued by the State Administration for Industry and Commerce".There are gaps,and there are differences on the effectiveness of the registration of industrial and commercial registration or on the effectiveness of registration.The nature of equity pledges and related legal provisions have been proposed.It is proposed to abolish the effective registration doctrine of the administrative department for industry and commerce as stipulated in Article 226 of the Property Rights Law,and to use the register of shareholders to record the effectiveism and to register the counter-adversaries with the administrative departments for industry and commerce.Combining practices.It can not only ensure the company's knowledge of equity pledged repurchase,but also generate publicity.