Research On The Legal System Construction Of Equity Transfer Guarantee

Equity transfer guarantee is a specific manifestation of transfer guarantee,which is an atypical guarantee mode different from that of tradition.With the in-depth development of China's market economy,it is also more common in commercial practice.It can not only improve the efficiency of economic exchanges and solve the financing difficulties,but also stabilize the transaction order,showing that it is of great value in promoting the development of commercial transactions and presenting the reason for its sustainable development without explicit Recognition of Law.However,its rise has led to an increase in related commercial disputes.Although its legal effect has been clearly recognized by many courts in judicial practice,some courts have denied it.This shows that judicial decisions are still controversial.Therefore,based on the basic theory of transfer guarantee and the analysis of the empirical cases in China Judgements Online,this paper is aimed at putting forward relevant suggestions on the legal construction of the equity transfer guarantee system,thus providing reference for the perfection of the legal system of equity transfer guarantee in China.There are four parts in this paper as followings.The first part is about the basic theory of equity transfer guarantee.On the basis of relevant academic research results,equity transfer guarantee is clearly defined according to its definition and characteristics.Subsequently,the characteristics of share transfer guarantee are highlighted through comparison with share transfer,share pledge and share repurchase.Finally,according to the two theories of “constitution of ownership” and “constitution of real right for security”,the author analyzes the legal nature of equity transfer guarantee and points out that “constitution of real right for security” is more reasonable.The second is about the necessity and feasibility of the construction of equity transfer guarantee system.Based on the empirical data of China Judgements Online,the necessity of system construction is analyzed around the huge number of disputes over equity transfer and guarantee,the improvement of debtor's financing efficiency and the reduction of debtor'sfinancing cost.Then,the feasibility is discussed through the combination of the principle of autonomy in private law,extraterritorial legislative experience,current academic research results and the basic principles of property law.The third is the discussion on the confirmation of the internal and external effectiveness of the equity transfer guarantee.In this part,first of all,the legal effect of equity transfer guarantee is empirically analyzed,including supportive cases and their ruling reasons,negative cases and their ruling reasons,in terms of the empirical data of China Judgements Online.Then,in accordance with the scope of secured claims,the exercise of equity and the way of repayment,the internal effectiveness of equity transfer guarantee is identified and analyzed.Finally,from the impact of the equity transfer guarantee on other shareholders,other equity transferees,other creditors of the debtor and other related subjects,the author analyzes the determination of its external effectiveness.The fourth is the analysis of the concrete construction paths of our China's legal system of equity transfer and guarantee,which is the core of this paper to put forward the resolution paths of disputes over equity transfer and guarantee.The systematic legal system framework path is proposed,including the choice of the legislative model of equity transfer guarantee,the framework of the basic constituent elements,the determination of the realization method of equity transfer guarantee,the creditors' priority in compensation of equity,and the application of strengthening the case guidance of Supreme People's Court of The People's Republic of China,etc.