On The Shareholder's Rights Of Creditors In The Security Of Share Transfer

In the practice of private lending in China,there has always been a typical space for the development of transfer guarantee.At present,with the rapid operation and development of social economy and the promotion of the reform of registered capital registration system,the application of equity transfer guarantee in practice is promoted.Compared with the typical transfer guarantee,the scope of interests involved in equity transfer guarantee is broader,involving both parties involved in equity transfer,as well as the interests of the company and the external third party.However,up to now,China's law has not stipulated that transfer security is a kind of real right of security.Therefore,even the transfer security of equity still bears the mark of "atypical".The same as the legal issues arising from the transfer guarantee,in the trial practice of the share transfer guarantee,there are also problems in the determination of the effect of the share transfer guarantee,the way of payment of the transfer guarantee,the creditor's priority of repayment and the effect of the pledge contract.However,not only that,in the equity transfer guarantee,because the creditor transfers the equity and completes the industrial and commercial registration of change,it at least exists as the nominal shareholder of the company.Therefore,whether the creditor has the shareholder qualification and can exercise the shareholder's rights has become the core concern in the equity transfer and guarantee.Taking the limited liability company as the object and the creditor's claim and exercise of the shareholder's rights based on the equity transfer guarantee as the center,this paper first analyzes the position and the deficiency of the judicial practice and the academic circles in identifying the problem,and puts forward the thinking route of this paper in analyzing the problem.This paper discusses the legal effect of each link of the equity transfer guarantee from the appearance of the equity transfer and the internal agreement on the establishment of the guarantee by the parties,and makes a legal and normative determination on the exercise of the rights of the creditors and shareholders.Under the transfer relationship,creditors who have entered into an equity transfer agreement and completed all legal procedures related to equity transfer shall enjoy the rights of shareholders.In principle,except for the legal restrictions,the obligee who accepts the equity based on the effective equity transfer is not bound in the scope of rights and the way of exercise.However,in the equity transfer guarantee,if the creditor has reached an agreement on the exercise of rights with the debtor,or the company is aware of the purpose of realizing the secured creditor's rights of the creditor's equity transfer,it is subject to the civil law of China The general restrictions of the principle and the principle of prohibition of abuse of rights restrict the scope and way of exercising the rights of creditors.Focusing on the restrictive agreement on the exercise of creditor's rights made by the parties in the equity transfer agreement for the purpose of guaranteeing the realization of creditor's rights,the specific agreement on the exercise of rights made by the parties in the contract is not necessarily binding on the company and other shareholders of the company,because whether the parties disclose to the company their arrangements called equity transfer and real equity transfer guarantee It's different.Furthermore,in terms of the legal effect of the parties' exercising the relevant rights in violation of the contract,in addition to the establishment of the debtor's liability for breach of contract,the company's knowledge of the guarantee purpose of the creditor's equity assignment affects the boundary between the validity and invalidity of the consequences of the exercise of its rights.Finally,after the parties transfer the equity for the purpose of guarantee,the possible interest dispute between the creditor as a shareholder and the external third party is one of the unavoidable problems in this paper.Based on the principle of the unity of rights and responsibilities and Article 32 of the company law of the people's Republic of China,the creditor has the obligation to protect the third party in the transaction under the premise of affirming that the creditor can claim and exercise the rights of relevant shareholders.Where the creditors of the company request them to undertake the obligations and responsibilities of shareholders,and the third party claims to acquire the Transferred Equity in good faith,the creditors and the guarantors shall not defend on the ground that the purpose of transferring equity is to provide guarantee.