Research On The Validity Of Equity Transfer Guarantee

With the emergence of atypical transfer guarantee methods such as equity transfer guarantees,a large number of cases concerning equity transfer guarantees have appeared in practice.In the cases involving the equity transfer guarantee,most of the judgments affirmed their validity,but in some cases,the court found that the equity transfer guarantee was invalid.The study of these confirmed and invalid equity transfer cases has important theoretical significance for the construction of the equity transfer guarantee system,and has important practical significance for guiding the equity transfer and guarantee judicial practice.Based on the case of the equity transfer guarantee in 2014-2018,the paper uses case analysis,comparative analysis and other methods to analyze the equity transfer guarantee and the reasons for the validity and invalidity of the equity transfer guarantee.The disputes in the validity determination,and propose corresponding solutions.In addition to the introduction and conclusion,the paper is divided into three parts.The first part is the identification of equity transfer guarantee.The equity transfer guarantee is an atypical guarantee method for transferring the equity to the creditor to guarantee the realization of the credit,which is different from the pledge of the equity and the settlement of the substitute.In judicial practice,the equity transfer guarantee is often determined according to the equity transfer agreement,the loan agreement and the repurchase agreement signed by the parties,as well as the rights and obligations agreed by the parties and the price of the share repurchase.The second part analyzes the disputes in the determination of the validity of the equity transfer guarantee.The dispute over the effect of the equity transfer guarantee mainly focuses on whether it violates the statutory principle of property rights,whether it is the false meaning of the conspiracy of the parties,and whether it violates the principle of invalidity of theliquidity contract.The inward validity of the equity transfer guarantee is mainly to solve the problem of how the validity of the act is determined when the creditor breaks through the restrictions and exercises the shareholder's rights.External effects include whether the third party can acquire the equity in good faith,whether the other shareholders of the company have the right of first refusal,whether the creditor of the equity transfer guarantee has priority over the guarantor,and the creditor of the equity transfer guarantee Whether or not other creditors at the time of bankruptcy of the company have the right to exclude them.The third part proposes a method to resolve the dispute over the validity of the equity transfer guarantee.First of all,it is necessary to clearly stipulate the validity of the equity transfer guarantee in the Property Law and unify the criteria for the recognition of equity transfer guarantee.Secondly,clarify the inward validity and external validity of the equity transfer guarantee.In terms of internal validity,the creditor's breach of restrictions on its rights to transfer equity should be considered a breach of contract and does not have corresponding legal consequences.In terms of external validity,the transferee can obtain equity based on the system of good faith acquisition;the other shareholders of the company have the right of first refusal,and the equity transfer guarantee is set without the consent of other shareholders.The agreement is validity internally,but relative to The other shareholders of the company are in a state of undetermined validity;the creditor of the equity grant guarantee has priority over the other creditors of the guarantor;when the company goes bankrupt,the creditor of the guarantee does not have the right to exclude.