A Study On The Transferring Guarantee System Legal Issues

The equity transferring guarantee system is a new type of financing guara ntee model that has been developed with the continuous prosperity of the mark et economy.Compared with the tedious procedures high cost and low flexibilit y of typical guarantee methods,The equity transferring guarantee system due t o its prevented transaction risks and the investment and finance functions have largely met and filled the needs of modern market transactions.Although The equity transferring guarantee system are not uncommon in practice,it is alwa ys regarded as an "Atypical" guarantee method,which is inconsistent with the current regulatory system to a certain extent.The current ruling ideas and logi c are difficult to form a unified ruling standard for this issue,and the judgme nt results of courts in various places are uneven.And because of the special n ature of equity,the problems are complex,diverse and changeable.Therefore,in view of the above problems,the article intends to study The equity transfer ring guarantee system in four parts,in order to provide some reference guideli nes for legislation and judicial practice.The first part is an analysis of the status of Judicial adjudication on The equity transferring guarantee system in judicial practice.Based on the analysis of the 67 selected cases,summarizes the statistics from court about the ratio of the validity and invalidity of the the equity transferring guarantee contract,sum marizes and analyzes the main dispute points involved in the selected cases an d analyzes the court's attitude towards the dispute points and the court cites la ws and regulations,judicial interpretations in the adjudication and the relevant provisions that are referred to or based on the specific analysis of the reasons for the application of the law in the “Views of the Court”.The second part is the concept and effectiveness of The equity transferring guarantee system.Through the analysis of the concept of The equity transferri ng guarantee system for clarify the concept of The equity transferring guarante e system.Then I discusses the attitude of our academia to The equity transferr ing guarantee system.The development of the academia in China,and then fur ther analyzed the legal structure in the German and Japanese doctrines of the l egal structure of The equity transferring guarantee system and China's doctrine of of The equity transferring guarantee system.Distinguish between the constit ution doctrine of ownership and constitution doctrine of security right.The aut hor believes that the“constitution doctrine of relative ownership”should be adopt ed.In terms of effectiveness,The equity transferring guarantee system does not violate the legal principle of property right,the prohibition of fluidity contract s,and there is no false meaning.The rights and obligations of the parties sho uld be distinguish Internal relations and external relations.The third part is the analysis of the main legal issues of The equity trans ferring guarantee system.Analyze the five main issues of the disclosure rules of The equity transferring guarantee system,the effectiveness of The equity tra nsferring guarantee system to the parties,the effectiveness of The equity transf erring guarantee system to the company,relationship between The equity transf erring guarantee system and third party and the realization method of The equi ty transferring guarantee system.The main legal issues of The equity transferring guarantee system from establishment to termination are analyzed.Regarding the publicity rules,reference can be made to The equity transferring guarantee system effectiveness rules to regulate the publicity rules.The scope of The eq uity transferring guarantee system of the creditor's right can be determined by referring to the provisions of Article 173 of the Property Law about the scope of security of the security real right,the grantee of the transferor of security righ should be given priority in principle.It is the significance of the establish ment of The equity transferring guarantee system,but the premise is that the c ollateral has been publicized in accordance with the principle of public propert y disclosure and can be known to a third party.The transferor of security righ is usually only a nominal shareholder.It does not have shareholder status,ca nnot exercise shareholder rights against the company in accordance with the pr ovisions of the Company Law,and cannot enjoy the property rights and memb ership rights such as shareholder participation in decision-making under the Co mpany Law.In the event of bankruptcy of creditor,the secured creditor is giv en priority over other creditors for compensation.The equity transferring guara ntee system should be based on compulsory liquidation,and generally use Disp osition and liquidation.The fourth part is envisages the establishment of China's equity transferrin g guarantee system.Firstly,it is expounded whether the construction of The e quity transferring guarantee system is feasible in China.Secondly,suggestions on jurisprudence choice,publicity and realization.With a view to providing so me benefits to the development of China's equity transferring guarantee system.China has the feasibility and necessity of constructing equity transferring guar antee system in legislation.It can be made in the single law or special provisio ns in the judicial interpretation.In the pre-legislative staget,the courts of our country should comprehensively consider the equity transfer guarantee,determine the interest relationship between the Transferor of security right,the compan y,and the third party,and maintain the balance of interests.