Research On The Effectiveness Of Equity Transfer Guarantee In Limited Liability Company

Equity transfer guarantee is an atypical guarantee system,which is increasingly widely used in practice,and in the meanwhile,relevant cases are also showing a spurt.The Minutes of the National Court Work Conference for Civil and Commercial Trials(hereinafter referred to as the Minutes)issued in November 2019 clarifies the effectiveness of the transferring guarantee contract,the transferee's preferential rights of compensation and the method of realization,but did not make more detailed provisions on the equity transfer guarantee.Compared with the transfer guarantee of movable or real property,the equity transfer guarantee,in which the legal relations are more complicated,involves not only the transferor,the transferee and the third party of both parties,but also the company,other shareholders and creditors of the company.With the multiple regulations of the contract law,property law and organization law,the legal issues of which are worthy of systematic study.This paper combines the rules of judicial adjudication,the traditional theory of the transfer guarantee and the provisions of the Minutes to explore the specific effectiveness of equity transfer guarantee on different subjects.In addition to the introduction and conclusion,this paper is divided into four chapters as following.The first chapter is "Basic Theory of Equity Transfer Guarantee".The basic theory of equity transfer guarantee is the premise to analyze its specific effectiveness on different subjects.At first,this chapter analyses the concept and legal structure of equity transfer guarantee and summarizes the functional advantages of equity transfer guarantee.The second chapter is "Internal Effectiveness of Equity Transfer Guarantee".First,this chapter analyses the effectiveness of the contract of equity transfer guarantee.Second,this chapter analyses the specific content of the internal effectiveness of the equity transfer guarantee,which is mainly divided into two parts.One is the transferee's preferential rights of compensation and the method of realization,which is the core of the internal effectiveness of the equity transfer guarantee.This chapter analyses the changes of the views of the academia and judicial practice on the preferential rights of compensation at first.Next,this chapter illustrates the article 71,paragraph 2 of the Minutes in conjunction with the traditional theory of the transfer guarantee.The other is the transferor 's claim of restitution.I will discuss the time limit for its exercise.The third chapter is "Effectiveness of Equity Transfer Guarantee on the Company and Other Shareholders".First,this chapter analyses the disputes about whether the equity is actually transferred in the equity transfer guarantee,whether the transferee has equity,and whether he can exercise stock rights within a certain range in the academia.In this way,I will propose the basic analysis path of this chapter.And then,I will analyze the confirmation of shareholder qualifications,exercise of stock rights,and commitment to shareholder obligations in judicial practice of equity transfer guarantee in the way mentioned before.Finally,this chapter analyses the coordination of Equity Transfer Guarantee and the pre-emption right and the right to consent of other shareholders at the point of the Equity Transfer Guarantee is established,the equity is returned and the equity is sold off.The fourth chapter is "Effectiveness of Equity Transfer Guarantee on External Third Party".The “third party” includes the company,the general creditor of the transferor and transferee,and the third party to whom the transferor or the transferee unauthorizedly dispose the equity.Specifically,first,for the creditors of the company,this chapter analyses the liability for defective capital contributions.Second,for the third party who purchases equity,this chapter respectively analyses the effectiveness and legal consequences of unilateral disposal of equity by the transferor or the transferee.Third,for the general creditor of the transferor and transferee,this chapter respectively analyses whether the opposite side can exclude the mandatory enforceability when the general creditor of one party enforces the equity mandatorily.Fourth,this chapter also analyses the rights and obligations of any parties in the bankruptcy proceedings.