An Empirical Study On The Trial Of Equity Transfer Guarantee

Equity transfer guarantee is a kind of transfer guarantee method that the creditor and the guarantor transfer equity to guarantee the creditor's rights.Through the way of equity transfer guarantee,the debtor can get financing quickly to make up for the defect that the debtor can't get the fund in time through other typical guarantee ways,and at the same time guarantee the realization of creditor's rights better.Compared with other types of guarantee,equity transfer guarantee has its advantages,such as saving transaction costs,the parties have a wider range of options and flexible ways to achieve and more adequate protection for creditors.Through the database of China Judgment Online,we find the judgment related to the equity transfer guarantee,through sorting out and summarizing the cases of equity transfer guarantee,we find that the cases of equity transfer guarantee show an increasing trend these years,however,there is no uniform standard for dealing with the disputes of equity transfer guarantee in the trial.Although the majority of the court recognized the equity transfer guarantee is effective,but the current legal and judicial interpretation does not have specific provisions on the transfer guarantee,let alone equity transfer guarantee.The purpose of this paper is to safeguard judicial justice,regulate the equity transfer guarantee reasonably,and provide judicial practice with the basis of judgment.This paper analyzes and discusses the nature of the transfer guarantee and the disputes in the validity determination.In terms of the nature,through the comparative study of the composition theory of ownership and the composition theory of security right,the conclusion is drawn that the composition theory of ownership is more in line with the characteristics of the transfer guarantee.In the aspect of validity determination,this paper demonstrates the validity of equity transfer guarantee from three aspects: the expression of false and false intention,the prohibition of liquid contract and the principle of property law.Finally,in the realization of the assignment of security rights,the feasibility of liquidation mode and priority of repayment is discussed.It is hoped that there will be different standards of handling such cases in the judicial trial,so as to provide certain solutions for the creditor's rights.It is suggested to interpret the system of equity transfer guarantee in combination with the existing civil and commercial law system.In the judicial judgment,we should take a tolerant attitude towards the system of equity transfer guarantee,judge the effectiveness of equity transfer guarantee on the basis of distinguishing the motivation and content of intention expression,and reasonably resolve the disputes involved in it;distinguish the boundary of rights and the way of rights exercise,so as to standardize the law criteria and methods of court decision.The main structure of this paper is divided into four parts:The first part starts from the judicial cases,through the classification of the judicial documents,extracts the typical sample cases,summarizes the current situation of the occurrence of the equity transfer guarantee cases,the types of the parties,the distribution time,the focus of the dispute,and the general situation of the court's determination of the effectiveness of the transfer guarantee.The second part describes the origin and development of the transfer guarantee,and defines the concept of the transfer guarantee.It analyzes the legal constitution of the transfer guarantee by comparing the ownership theory and the security right theory,and gives opinions on whether the transfer guarantee is“transfer”or“guarantee”.It holds that the transfer guarantee should be based on the theory of ownership,emphasis the means of “transfer” of the transfer guarantee,so as to be able to be compared with other guarantee to distinguish and highlight the characteristics of the transfer guarantee system.The third part,by refuting the views of collusion and false expression of intent,violation of the legal principle of real right,prohibition of the provisions of liquid contract,and affirms the effectiveness of the transfer guarantee.Combined with the case,this paper analyzes the characteristics and effectiveness of equity transfer guarantee.The fourth part is the research on the realization of the security right of equity transfer.Because there is no legal provision in the system of transfer guarantee,it is a difficulty in the realization of rights.This paper discusses the court's liquidation problem and whether the creditor has the priority to be paid through the case and the minutes of the national court's civil and commercial trial work.At the same time,the paper analyzes the standard tendency in the minutes.