Research On The Validity Of Equity Transfer Guarantee

With the rapid development of the economy,people's increasing demand for capital leads to increasing demand for loans,which has become a common problem faced by small,medium and micro-sized enterprises.In order to alleviate the current situation of loan difficulties,many financial innovative products were born.As an emerging non-typical guarantee method,equity transfer guarantee has gradually developed into a widely used guarantee method by virtue of its unique advantages.However,because the law has not carried on the clear stipulation to this kind of guarantee way,causes in the judicial practice to have many differences,exists the same case different judgment phenomenon.Especially in the past two years,the number of equity transfer and guarantee disputes shows a trend of doubling year by year.There are two reasons that lead to the increase of the number of dispute cases.One is that the application of this guarantee method has been more widely used.The way of equity transfer and guarantee is relatively late in China.At present,there are few studies on equity transfer and guarantee in China's academic circle,but the number of dispute cases keeps increasing.Therefore,it is very important to study the effectiveness of equity transfer and guarantee.This paper starts from the common disputes and differences in judicial cases,analyzes and explores the validity determination of equity transfer guarantee by combining the views of legal theorists and judicial cases in practice,and puts forward some opinions and Suggestions on these issues.This paper is divided into the following five parts.The first part is the overview of the guarantee effect of equity transfer.This part mainly introduces the concept characteristics of equity transfer guarantee and the concept of equity transfer guarantee effectiveness.The conceptual part of the guarantee effect of equity transfer introduces its contract effect,internal effect and external effect respectivelyThe second part is the effectiveness of the equity transfer and guarantee contract.In this part,the author demonstrates that the guarantee of equity transfer is not invalid because of the violation of the principle of numerus clauses,that the guarantee of equity transfer is not a false expression of intention,and that the guarantee of equity transfer should not simply apply the provisions prohibiting liquid contract.The third part is the internal effectiveness of equity transfer guarantee.In the part of internal validity determination of equity transfer and guarantee,the author mainly studies the limit of creditor's exercise right and the validity determination of creditor's right to pay off.The fourth part is the external effect of equity transfer guarantee.In the part of external validity determination of equity transfer guarantee,the author mainly studies the effectiveness of equity transfer guarantee to other shareholders of the company,the effectiveness of external transferee third party,the effectiveness of other creditors of the guarantor,and the validity determination of other creditors in the case of bankruptcy of the company.The fifth part is the conception of establishing the legal system of equity transfer guarantee in China.The author proposes to put forward the legislation work of equity transfer guarantee on the agenda by clearly establishing the equity transfer guarantee system in the property law,adding the category of equity transfer guarantee registration in the industry and commerce registration,and establishing the equity transfer guarantee liquidation system.Due to the complexity of the legislative procedure,a unified judgment standard can be formed on the validity determination issue temporarily by timely releasing the official guiding cases.In the judgment,we should adopt the principle of lenient consideration of the value of the assignment guarantee.