An Analysis Of The Three Cases Of Disputes Over Equity Transfer Guarantee

With the continuous development of society,there are more and more ways of capital financing.Private lending plays an important role in promoting capital operation.In order to guarantee the realization of its own claims in the future,creditors of private lending have created a new type of security that guarantees creditors rights with equity transfer.However,the validity of this kind of guarantee has always been disputed because it has not been stipulated in the legal framework of our country and is not in violation of the legal and liquid contract of real right.From the twenty-fourth article of "the Supreme People’s Court on several legal provisions on the application of law to civil debit and credit cases",the legislator tends to consider the sale contract as a guarantee for private lending,confirming the function of a contract with a guarantee but not having its effect and seeing the creditor’s object to the contract of sale.There is no clear provision for the right to be paid without priority.By analogy,the following three focus problems are extracted from the analysis of three cases of equity transfer guarantee:one is the property of the equity transfer guarantee;the second is the validity of the equity transfer agreement;and the third is the priority of the creditor in the equity transfer guarantee.The essence of the equity transfer agreement is the guarantee,which is not a typical guarantee provided by the property law,but an atypical guarantee-transfer guarantee.If there is no real transfer of equity after the signing of the equity transfer agreement,the equity assignment guarantee can be divided into the creditor’s right equity assignment guarantee and the property right transfer guarantee.The agreement on transfer of shares is the intention of hypocrisy,which is truly effective and plays a role of concealment under the equity transfer agreement.After signing the equity transfer guarantee,if a reasonable public means is adopted,it has the effect of real right and has the right of priority to be paid.If it is not publicly shown,it is only a general claim,and it does not have the right of priority to be paid.Because the equity assignment guarantee has not been incorporated into the civil law system,there is no special publicity method,therefore,it will be seen at present.It can only be applied analogous to the real estate transfer guarantee,the conveyance guarantee of movable property and the publicity method in the typical security interest.