A Study On The Demarcation Criterion Of Stock Equity And Creditor's Right

In our country,transfer guarantee is a kind of non-typical guarantee,which guarantees the fulfillment of creditor's rights by transferring ownership.Transfer guarantee in the broad sense is also called "guarantee of sale",which is usually carried out by means of sale or repurchase,without the existence of creditor's rights and debts.Stock equity transfer guarantee is a kind of non-typical guarantee with equity as the subject matter.In the current financing context,in order to reduce the debt-to-equity ratio of companies,and to help investors better monitor funds and receive fixed income steadily,and to ensure efficient and preferential payment in the case of bankruptcy,stock equity transfer guarantee has developed rapidly in the field of commercial financing.Stock equity transfer guarantee has no uniform mode,and most of them can be classified as the new capital operation mode of "equity investment + debt repurchase".The Ninth National Court Work Conference on Civil and Commercial Trials has issued minutes(the "Nine Civil Minutes"),further clarifying issues such as the effectiveness and legal effects of the transfer guarantee,and conveying a positive signal that judicial authorities are becoming more open to the transfer guarantee which is a non-typical guarantee mode.The transaction arrangement in the case of stock equity transfer guarantee is complicated.Legal issues such as the demarcation between stock equity and creditor's rights and the determination of shareholders' qualifications are involved in judicial practice.In particular,the issue about how to identify the legal nature of the investment funds is not unified in the judicial practice.There are a large number of cases with different judgments.In October 2019,the Supreme People's Court("SPC")introduced the Implementing Measures on Establishing the Mechanism for Resolving Differences in the Application of Law,in order to unify the application of law and judgment criteria.Under this background,this paper will take the case of the transfer of shares as the sample,combs and studies the demarcation question between the stock equity and the creditor's rights.Through theoretical discussion and case study,this paper extracts the demarcation criteria of stock equity and creditor's rights in cases involving stock equity transfer guarantee,in order to help the judicial recognition of stock equity and creditor's rights.This paper is divided into six parts.The first part is "putting forward the question".Starting with a classic case of Xinhua Trust and Hongkong Real Estate,this paper leads to the question,that is,how to correctly identify the legal nature of the transaction object in the case of stock equity transfer guarantee.And through discussing the impact of the demarcation of stock equity and creditor's rights in the case,the significance of studying the demarcation criterion of equity and creditor's rights is summarized.The second part is "judicial status quo and theoretical predicament".This part combs 84 cases which searched in the Chinese judgment document net,finding the current judicatory trial chaos through the judgment document.In this part,we also summarize the relevant laws and regulations concerning the demarcation between stock equity and creditor's right and the existing theories concerning the demarcation between stock equity and creditor's right.The theory of the integration of stock and debt claims that stock equity and creditor's blending,that is,there is no need to discuss the specific demarcation criteria of stock equity and creditor's right.This brings great challenges to the paper.Therefore,this paper discusses and responds to this theory in order to make the whole structure of the article complete.The third part is "the demarcation between the stock equity and the creditor's right in the case of the stock equity transfer guarantee ".This part first summarizes the transaction mode of the stock equity transfer guarantee,analyzes the nature of the security right and the nature of the stock equity,and discusses the criterion of demarcating the stock equity and creditor's rights.The fourth part is "selection of criteria for demarcation of stock equity and creditor's right".In this part,five factors are selected as the demarcation criteria between stock equity and creditor's right from the perspective of research of true intention and actual performance of contracts,including whether there is an agreement on fixed income and analysis of source,whether the stock equity transfer price is reasonable,whether there is any other guarantee,whether the Parties have participated in the operation and management and whether the stock equity transfer registration has been completed.The applicable reference is also given based on cases.The fifth part is "verification of the criterion for demarcation between equity and debt".First,the applicability of the criterion is verified by a case study,and the nature and validity of the contract under the criterion are discussed.Secondly,it analyzes bankruptcy procedure and compulsory execution procedure one by one,focusing on how to balance the use of commercial externalism and autonomy of will in the presence of a third party.The sixth part is "conclusion".This paper summarizes the judgment path of the demarcation criterion of stock equity and creditor's right in the case of stock equity transfer guarantee.At the same time,learn from the Anglo-American law on the experience of adjudication and achieve that the demarcation criterion summarized from the judicial case,and applied to the judicial case.