Research On The Validity Of Epuity Transfer Guarantee

With the development of economy,as an atypical way of transfer guarantee,equity transfer guarantee is more and more used in civil and commercial activities.While providing convenience to the parties,there are also disputes about the validity of equity transfer guarantee in theory and practice.Moreover,these disputes are also reflected in the different judgment logic followed by the court's judgment practice from time to time.Therefore,it is of great significance to clarify the effectiveness of equity transfer guarantee,not only to construct the rule system of equity transfer guarantee,but also to guide the corresponding judicial practice.This paper attempts to define the essence of equity transfer guarantee,and on the basis of the evaluation of the relevant effectiveness disputes,to explore how to build the effectiveness rules of equity transfer guarantee.The paper is divided into four parts:The first part is the essence of equity transfer guarantee.First of all,this paper defines the connotation of equity transfer guarantee.Equity transfer guarantee is a kind of an atypical guarantee method for temporarily transferring equity in order to realize transaction,which has two types:broad sense and narrow sense.As the guarantee of equity transfer is a special guarantee with equity as the subject matter,this paper expounds the characteristics of the guarantee of equity transfer based on the analysis of equity.By summarizing the forms of equity transfer guarantee,this paper further distinguishes the difference between transfer type and sale type.Secondly,this part compares equity transfer guarantee with equity pledge,equity transfer and transfer guarantee to clarify the boundary of related concepts.The second part is the dispute about the validity of the equity transfer guarantee.Although the law of our country does not stipulate the system of transfer guarantee,there are always disputes about the validity of this form of guarantee.This part analyzes whether the security of equity transfer violates the legal principle of real right,whether it is a false expression of collusion,and whether it violates the principle of invalidity of liquid contract.Through the research,first of all,the guarantee of equity transfer does not violate the legal principle of property rights;second,the disposal of equity in this way is the real expression of intention of both parties,not a false expression;finally,for the principle of invalid liquid pledge contract,we should combine the expression of intention and content of equity transfer guarantee in practice to make a comprehensive judgment.The third part is the dispute on the determination of the security effect of equity transfer.First of all,the effectiveness of the equity transfer contract.The equity transfer contract plays the role of the realization of the guarantee creditor's rights in the process of equity transfer.In essence,it is the equity transfer guarantee contract.In practice,there are two opinions on the determination of its effectiveness.One view is that the loan contract and the equity transfer contract are evaluated separately as independent legal acts;the other view is that there is a logical relationship between the contracts,which needs to be evaluated as a whole.Secondly,the internal effect of equity transfer guarantee.Including the effect on the creditor and the debtor.Finally,the issue of external effectiveness of equity transfer guarantee.This part includes the effect on other shareholders and the effect on the third party.The effect on other shareholders is mainly reflected in the preemptive right.The effect on the third party is mainly divided into the effect on the third party of equity transfer,other creditors of the guarantor and other creditors when the company goes bankrupt.Because of the uncertainty in the determination of various effects,uniform rules need to be made for the guarantee of equity transfer.The fourth part is the construction of the rules of the security effect of equity transfer.First of all,from the theoretical level of the system into the current legal system,clear the legal status of equity transfer guarantee.Including its necessity,feasibility and legislative choice.In terms of legislative choice,considering that the original intention of the system is to ensure the smooth completion of transactions,the system should be included in the title of property rather than the title of creditor's rights in the civil code.Secondly,in the construction of rules,we should make clear the establishment and publicity standards of equity transfer guarantee.From the time of equity transfer,the form and nature of security setting,and the publicity method of security,we can guide and standardize the practice,and provide clear legal guidance for judicial practice.Finally,in the design of rules,we should make clear the internal and external effects of the security of equity transfer.In terms of internal effect,we should follow the principle of distinguishing the ownership and exercise of equity,and set up equity withdrawal clauses;in terms of external effect,we should distinguish whether it is a bona fide third party to deal with according to whether we know the situation and follow the principle of internal and external differences.