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Study On Equity Transfer And Guarantee Effectiveness From The Perspective Of Judicial Judgment

Posted on:2020-11-13Degree:MasterType:Thesis
Country:ChinaCandidate:Y J GuiFull Text:PDF
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Equity transfer guarantee is a kind of transfer guarantee method by which the creditor and guarantor guarantee the creditor's right by transferring equity.Through the equity transfer guarantee,the debtor can quickly get financing and better guarantee the realization of creditor's rights.The creditor holds the equity of the guarantor in the form,which can avoid the guarantor from bearing more debts in the business process and causing it to reduce or lose its ability to repay the debts of the creditor.Compared with other types of security,equity transfer security has its advantages,such as saving transaction costs,having a wider range of options and more flexible ways of realization for the parties,and providing more adequate protection for creditors.This article through China's official website,handle the case network and other websites to search for equity transfer and guarantee related judge documents,found that the case of equity transfer and guarantee increased year by year,but the trial of the equity transfer and guarantee dispute is not a unified standard.Although the majority of the court recognized the effectiveness of the equity transfer guarantee,the relevant laws and judicial interpretations did not involve specific provisions on the equity transfer guarantee,let alone the equity transfer guarantee.Based on judicial cases and judicial documents,this paper analyzes the difference in the effectiveness of equity transfer and guarantee and the relationship among the variables.Based on this,this paper further discusses the influencing factors and the causes of the disputes on the effectiveness of equity transfer and guarantee,and finally demonstrates that it is necessary to standardize the equity transfer and guarantee by means of legislation.There are five parts in this paper,the specific content is as follows.The first part is to summarize the relationship and difference between equity transfer guarantee and relevant systems.By comparing the concept and characteristics of equity transfer guarantee and transfer guarantee,equity transfer,equity pledge,ownership reservation and buy-back system,the differences between the two systems are clarified,and the differences between the two systems are distinguished,so as to facilitate the identification of equity transfer guarantee in judgment.Secondly,it summarizes the basis of the judicial judgment on the equity transfer and guarantee,and clarifies the qualitative theory of equity transfer and guarantee: the dispute of structure and the dispute of writing.The second part refers to the confirmation of the effectiveness of the equity transfer guarantee in the judgment.Through the position of the court in the judgment and the cases of the confirmation of the validity or invalidity of the equity transfer guarantee,it can be found that the status quo of the confirmation of the express effectiveness and the confirmation of the guarantee effectiveness are inconsistent with the same case and the applicable basis.In the judgment of the equity transfer guarantee effect is generally divided into two categories,one is to affirm the equity transfer guarantee effect,the other is to deny the equity transfer guarantee effect,and then analyze the basis of the judgment.The case is further analyzed in detail to conclude the factors affecting the judgment of the effectiveness of the equity transfer and guarantee in the judgment,and summarize the rules of the judgment of the effectiveness of the equity transfer and guarantee in practice from the aspects of year,region,appeal of the parties,nature of the parties,and trial level.The third part analyzes the legal principle of equity transfer guarantee.The equity transfer contract effectiveness in practice that the present situation of research,involving the specific reason for the stake to guarantee effectiveness analysis,there are as follows: the principle of real right legal violation,seeks the hypocrisy of determination,liquid clause is invalid,equity transfer,guarantee the implementation of the behavior,method and so on factors affecting equity guarantee effectiveness.This article carries on the elaboration,the analysis one by one,and puts forward the view.The fourth part summarizes the reasons for the identification of the effectiveness of equity transfer guarantee in judicial practice.In practice,there is no uniform judgment standard,and courts have their own opinions and hold different cases.Secondly,the court of second instance and the court of retrial has significantly changed the judgment on the effectiveness of equity transfer guarantee.Lack of authoritative guidance cases is one of the important reasons.The fifth part puts forward the views and opinions of this paper according to the reasons.Hope to be able to provide some help to the effectiveness of equity transfer guarantee in the trial.May wish in the future legislation,carries on the standard to the assignment guarantee system,causes it to obtain the legal restriction,more justifiably.Then the judges focus on formal reasoning,relax the consideration of equity transfer guarantee,too strict is not conducive to the implementation of practice.Finally,it is suggested that the Supreme Court issue relevant guiding cases to guide the court's trial work.This article mainly adopts the investigation analysis method,the case study method,the literature synthesis research method and the summary induction method and so on research method.
Keywords/Search Tags:real rights for security, stock rights, transferring guarantee, Equity assignment guarantee, fluidity clause
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