Equity Transfer And Guarantee Study

After the establishment of socialist market economy in China,people's demand for transaction methods in market transactions has become more and more diversified.Equity transfer and guarantee have gradually emerged in practice,which has the advantages of promoting economic exchanges,reducing guarantee risks and stabilizing social order.In recent years,the new way of equity transfer guarantee is more and more used by people,and in our country's judicial practice,most courts have basically recognized this guarantee.It can be predicted that with the development of economy,the cases of equity transfer guarantee in practice will increase day by day.The author believes that this system will also play an important role in debt guarantee in the future.Therefore,in such a situation,this paper intends to study the equity transfer and guarantee,in order to provide guidance for the legislative and judicial practice.The first part is the basic theory of equity transfer and guarantee.Firstly,the concept of the underlying equity and its rights are described,and then the concept of assignment and guarantee is further discussed.Secondly,it discusses several important characteristics of equity transfer guarantee as a guarantee method.In the end,this paper probes into the origin of the transfer guarantee system from the two different origins of the Roman law and the Germanic law,discusses the emergence and development of the share transfer guarantee,and expounds the rise of the share transfer guarantee and the attitude of judicial practice in China.The second part mainly discusses the equity problem of guarantee law.enumerates several kinds of main academic theories at present,mainly includes two stage possessors,expectations right(attached lifting condition),authorization,mortgage,pledge,say,ownership composition,and so on,at the same time to the above analysis and evaluation on the various theories,to discuss whether these theories is suitable for practical application of guarantee of equity in our country,this paper argues that the most suitable for our country's equity transfer are the theory of the nature and related reasons.The third part is the study of the effectiveness of equity transfer and guarantee.This paper first discusses three main reasons that hinder the effectiveness of equity transfer and guarantee: the principle of real right,the pledge contract and the expression of false will;While recognizing the validity of the transfer guarantee,this paper focuses on the distribution of the internal rights of the parties and the external legal relations of the parties.In addition,some special problems are discussed,such as whether the equity pledge and assignment guarantee can exist simultaneously on the same equity and the status of the creditor in the case of debtor's bankruptcy.The last part is the attempt to construct the legislation of the assignment guarantee system in our country.Firstly,it analyzes the necessity and feasibility of establishing the system of equity transfer and guarantee in China.Secondly,it designs the legislation of the system.Finally,it elaborates on the attitude and standards that Chinese courts should adopt in the transitional stage before the legislation of the system.