The Study On The Validity Of Equity Transferring Guarantee

After the Supreme People's Court issued the 9th National Court's Civil and Commercial Adjudication Conference Summary,it has active significance to alleviate the long-existed problem of finding suitable law on equity transferring guarantee.While after studying the recent judicial cases of the supreme people's court on the confirmation of the validity of equity transferring guarantee,the conference summary has not been able to completely solve the difficulties in the confirmation of the validity of equity transferring guarantee in judicial practice.Starting with the judicial cases of the supreme people's court,this paper will objectively present the current judicial practice involved in the validity of equity transfer guarantee,then analyze and study on the internal and external validity of equity transferring guarantee,hoping to benefit judicial practice and law application.This paper has five parts,and the main content is as follows.The first part is a brief description of the research background,significance,research status,research methods,to make a preliminary description of the research.The second part is based on the judicial cases,summarize and analyze the types of claims and the focus of disputes,and study the referee views on the confirmation of the validity of equity transferring guarantee equity guarantee,laying a foundation for the research on the internal and external validity of equity transferring guarantee.The third part is to analyze the internal validity of equity transferring guarantee,mainly including the nature and effectiveness of the so-called share-transfer contract,the scope of secured creditor's rights and subject matter,and utilization and management of equity.In the internal validity study,the intention expression of inter-party guarantee intention is explored,and the contract validity and transfer guarantee function of equity transferring guarantee' contract are affirmed.The future creditor's right can be regarded as the secured creditor's right,provided that the amount of the creditor's right is predictable and has scope.The subject matter of the guarantee is the whole of the equity which can be transferred and be in law,and has the effect to the legal interest.On the utilization and management of equity,the transferor and transferee of equity emphasize the actual ownership of equity,and the actual owner of the equity is still the transferor.However,if the transferor fails todisclose the intention of the transferring guarantee to the company,it shall not oppose the company and other shareholders on the ground that the equity transfer contract is actually the equity transferor guarantee.The transferee shall not dispose of the equity without the consent of the transferor,but can supervise the management of the company involved in related equity.While the transferor shall not detract from the value of the equity during exercises the equity rights.The fourth part is to study the core of the internal effectiveness of equity transferring guarantee,which is the right of priority.On the basis of "referring to the provisions on real right of security" stipulated in the 9th National Court's Civil and Commercial Adjudication Conference Summary,this paper makes a detailed analysis on the implementation basis,implementation conditions,realization methods and priority order of compensation for the priority right of equity transferring guarantee.As for the priority order of compensation,the transferee has priority over the general creditor,and there are three cases to be distinguished in the priority order of compensation with other security real right.That is,The first is to set up a new transferring guarantee after the equity transferring guarantee;The second is to set a equity pledge after the equity transferring guarantee;The third is to set up the a new equity transferring guarantee after equity pledge.Based on the above three situations,the priority compensation order is determined based on the setting subject and whether the third party is in good faith.The fifth part is the external validity of equity transferring guarantee,referring to the validity for the company,the general third party and the ordinary creditors in the bankruptcy proceedings.About the validity of the company,generally only recognizes the transferee is a nominal shareholder,who can't claim shareholders' rights to the company,but when the company does not know the intention of equity transferring guarantee,the transferee should perform the obligations of shareholders.For the validity of the general third party,when the transferor transfers or pledges the equity to the third party,the corresponding equity transfer contract and equity pledge contract shall be valid,but the transferee shall be compensated prior to the equity pledge of the third party;When the transferee disposes of the equity,the validity shall have no right to dispose of the equity.With regard to the effectiveness of ordinary creditors in bankruptcy proceedings,when the transferor goes bankrupt,the transferee may not exercise the right of recovery,but may exercise the right of exclusion to receive compensation in priority.When the transferee is bankrupt,thetransferor may exercise the right of recovery after paying off the debt.