Probe Into The Legal Issues Of Equity Transfer Guarantee

Equity transfer guarantee as a financing guarantee means is an emerging guarantee method in the process of market transactions in China,which guarantees the realization of creditor's rights by means of transfer of equity.As a kind of atypical guarantee,China's laws do not expressly regulate this.For a long time,the academic circles and the judicial practice circles have been controversial about the identification of the equity transfer guarantee,the nature of the equity transfer guarantee,the effect of the equity transfer guarantee,and the realization of the equity transfer guarantee.This paper selects the 38 typical judicial cases of equity transfer guarantee on the online of the referee,and discusses the controversial issues in focus with relevant legal principles.The first part of this paper discusses the issue of the determination of equity transfer guarantee.Firstly,it elaborates the particularity of the equity transfer guarantee method compared with other transfer guarantee methods,so it is necessary to conduct special research on it;then,compare the equity transfer guarantee with equity transfer and equity pledge,so as to Jurisprudence sums up the characteristics of equity transfer guarantee;finally,through the analysis,induction and research of typical judicial cases,it summarizes the criteria and basis for the recognition and guarantee of equity in judicial practice.The second part of the thesis discusses the effectiveness of the civil legal act of equity transfer guarantee after the nature of a civil legal act is recognized as equity transfer guarantee.The first is to expound the nature of one of the content of the behavior,the two aspects of the academic world: one thinks that the equity transfer guarantee is real right guarantee,and the other thinks that the equity transfer guarantee is debt guarantee.This paper believes that the nature of equity transfer guarantee is complex.It has both the nature of real right guarantee and the nature of debt guarantee.It may be stipulated in the “guarantee method of debt” to solve the problem of difficulty in determining the equity transfer guarantee.Then,through the statistics of the typical cases of the judiciary,the attitude of the judiciary on the validity of the equity transfer guarantee is summarized,that is,74.6% of the courts affirmed their effectiveness,11.4% of the courts denied their effectiveness,and 14% of the courts did not Itseffectiveness is to be interpreted by the referee.The third part of this paper discusses the realization of equity transfer guarantee based on the affirmation of the effect of equity transfer guarantee.The first is to let the security right holder act as the creditor and the nominal shareholder at the same time,whether to of course enjoy and exercise the shareholder's rights and participate in the company's operation and management;secondly,as a means of realizing the secured creditor's rights,how to operate the equity when it really needs its function Guarantee,this discusses the two realization methods of liquidation and liquidity;in addition to the realization of the equity transfer security right,because the law does not stipulate,whether the creditor of course enjoys the priority of compensation,this article combines relevant legal and judicial cases This is affirmed.The fourth part of the paper finally discusses the legal risks and perfection of the equity transfer guarantee.Since the law does not expressly stipulate such guarantee methods,it still has a lot of controversy,and through the analysis of typical judicial cases,it is found that some courts still deny their effectiveness,thus failing to achieve the purpose of setting up equity guarantees..In order to avoid the above situation as much as possible,this paper analyzes the reasons and specific circumstances of the court's denial of the effect of the equity transfer guarantee,summarizes the legal risks of the equity transfer guarantee and proposes perfect suggestions for the aforementioned risks,for the parties and the judiciary to learn from.