Study On The Legal Issues Of Equity Transfer Guarantee

Transfer guarantee is an atypical security method originating from the trust system in Roman law and Germanic law.Most of the civil law countries represented by Britain and the United States represented by the United Kingdom and the United States and Germany and Japan have used different forms to confirm the position of the atypical security method of transfer guarantees and made them universal in judicial practice.application.As China's economy is accompanied by high-speed operation and development of social economy,the demand for funds is even stronger.Therefore,new types of guarantee models are emerging.So the equity transfer guarantee came into being and became popular.People liked it.However,due to the fact that China did not regulate the transfer guarantee in the law,the court would also have different types of case judgment in practice.Judging from the point of view of safeguarding judicial justice,we need to make reasonable regulations on equity transfer guarantees and provide the judiciary with reasonable and appropriate judgment basis.This paper starts from the definition,characteristics and history of transfer guarantee,studies the legal constitution of transfer guarantee,compares the two theories of ownership constitution theory and collateral construction theory,and obtains the conclusion that the theory of security right is more suitable for the actual situation.It then discusses that the constitutional elements of the emerging guarantee system of share transfer guarantees include the effective claims,parties,subject matter,set behaviors,and written setting methods.At the same time,equity transfer guarantees require the parties to have full civil capacity.For the purpose of guarantees,the claims for repayment of the terms of the repayment are conditions for revocation,registration,and public notice as conditions of entry into force.In view of the legal validity of transfer guarantees,this article refutes the argument that equity transfer guarantee is a hypocrisy of conspiracy,violates the prohibition of liquidity contract,and violates the statutory principle of real right,and affirms the legal effect of share transfer guarantee.At the same time,it also clarified the effectiveness of transfer guarantees both internally and externally,and studied the rights and obligations enjoyed by the parties in the case of possession and use of secured equity,bankruptcy of the parties,and the party ' s private disposition of secured equity.Finally,in conjunction with the 42 cases of judicial practice,the specific methods for distinguishing between equity transfer guarantees and equity transfers and equitypledges were discussed.In practice,the specific method for determining equity transfer and guarantees was discussed.How creditors did equity transfer and security rights through liquidation Implementation and other content.And explain whether the debtor has the priority of repayment.