Research On The Type Of Equity Transfer Guarantee Disputes

With the rapid development of market economy,the traditional guarantee measures have gradually been unable to meet the market demand.In this context,the non-typical guarantee method "emerges suddenly",among which,the transfer guarantee with the advantages of flexible financing,low transaction cost,and the possibility of the third party hindering the realization of creditor's rights i s small,which has been widely used in practice,and has become one of the most typical non-typical guarantee methods.In private lending,some creditors,in order to increase the possibility of realizing their creditor's rights,sign an equity transfer ag reement with the debtor at the time of lending,transfer the equity held by the debtor to the creditor,and agree that the debtor will repurchase the equity at the end of the debt liquidation period.If the debt cannot be repurchased,the equity will belon g to the creditor.At this time,from the appearance,the agreement signed by creditors and debtors is the equity transfer agreement,and creditors have acquired the ownership of equity.Under this kind of agreement arrangement,the rights and obligations between the parties are often controversial.By studying all the cases of equity transfer guarantee disputes since 2010,the focus of disputes,the results of judgment and the reasons for judgment are sorted out and analyzed.The core of disputes in these cases is mainly about how to identify the model of equity transfer guarantee,the effectiveness of equity transfer guarantee,the rights and obligations of shareholders and the reality of creditors after the creditors' equity transfer.The present creditor's rights are expanded.First of all,the behavior of the parties to constitute the equity transfer guarantee model needs to satisfy the basic relationship between creditor's rights and debts between the two parties and transfer the litigated equity for the purpose of securing the realization of the creditor's rights;secondly,with the development of theory and practice,the effectiveness of the equity transfer guarantee has been affirmed by the vast majority of judgments;thirdly,for the transferee's equi ty.The transferee,in practice,generally believes that because it is the transferee's equity as the guarantee of creditor's rights,it is not the real shareholder of the target company and does not have the rights and obligations of shareholders.Finally,in terms of the debt settlement between the parties under the transfer of equity guarantee mode,the court generally respects the agreement of the parties,but generally holds a negative attitude towards the liquidity clause,when the parties agree not to it.In the future,the obligation to settle accounts with the parties should be enforced.