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A Study On The Guarantee Effect Of Equity Transfer Of Limited Liability Company

Posted on:2021-02-13Degree:MasterType:Thesis
Country:ChinaCandidate:K MaFull Text:PDF
GTID:2416330647953936Subject:Law
Abstract/Summary:PDF Full Text Request
Assignment guarantee means that the guarantor provides guarantee for the debt by transferring the ownership of all the subject matter of the guarantee to the creditor.If the debtor pays off the debt on time,the creditor shall return the subject matter to the guarantor;if the debt is not paid off on time,the creditor can exercise the priority right of repayment on the collateral.Some scholars believe that the advantage of transferring security over legal security is that the way of realizing creditor's rights is more convenient and easy,which is conducive to the preservation of the subject-matter of security.At the same time,the subject-matter can still be used by the debtor,which can create greater economic benefits than the mortgage of transferring possession.In our country,in recent years,there are many cases of enterprises financing through equity transfer guarantee.Some scholars believe that the prosperity of the cases related to equity transfer guarantee is related to the revision of the minimum registered capital of the company in the company law,the reduction of the threshold for the establishment of the company and the demand for enterprise financing,to a certain extent,has given birth to the way of equity transfer guarantee.In practice,the equity transfer guarantee is mostly used to expand the financing scale,and the guarantee mode saves more transaction costs than the typical guarantee mode when it is set and realized.Due to the significant increase of the number of transfer guarantee cases of equity as the subject matter,in order to make the system smoothly implemented in China and give full play to its financing and guarantee functions,the author thinks it is necessary to study the system.The main body is divided into four chapters: the first chapter is the summary of cases in judicial judgment.Through the analysis of the case,in order to clarify the status quo of the equity transfer guarantee cases in China,and find out the problems in practice,clear research direction and provide practical basis for later research.Through the research of this chapter,it is found that the number of transfer guarantee cases and equity transfer guarantee cases in China is on the rise,and the vast majority of courts hold a positive position on their effectiveness.In litigation,most of the debtor's claims are to confirm the shareholder's qualification,which should constitute a pledge to confirm the invalidity of the equity transfer guarantee,to request the creditor to return its equity or to require the creditor to take the responsibility of disposing the equity without permission;while most of the creditor's claims are to exercise the priority of repayment,to confirm the shareholder's qualification or to retain the equity.According to the dispute focus of the parties,this paper also focuses on three issues: the use of collateral,the effectiveness of security implementation,and the effectiveness of creditors' unauthorized disposal of equity.According to the problems reflected in the case,the equity is compared with movable property and real estate,and the equity transfer guarantee and equity pledge.Through the comparison,common and different points are found,which provides a comparative reference for the follow-up research.Finally,the paper summarizes the judgment thinking of the court and details the logic of the court in judging such cases.The second chapter is the analysis of the relationship between the use of the subject matter of the equity transfer guarantee.On the premise of recognizing the validity of the security of equity transfer,whether the creditor has the ownership of the collateral is the primary issue in the case of equity transfer security in practice.By analyzing and comparing the theory of "security right" and the theory of "ownership",because adopting the theory of "ownership" will enable the creditor to obtain the shareholder's rights,affect the debtor's normal operation,be unable to transfer the internal theoretical system of security by itself,and be unable to give the debtor the protection for the purpose of security when the creditor disposes the equity without authorization,but adopting the theory of "security right" will not enable the creditor to obtain the shareholder's rights In order to protect the third party and play the financing guarantee function of the equity transfer guarantee,we can use the good faith acquisition rule to exclude the disposal of the malicious third party and the non legal act in the creditor's unauthorized disposal of the equity market,which is in line with the spirit of the nine people's minutes.Therefore,we should adopt "the theory of security right",respect the meaning of security between the parties,the creditor is not the owner of equity,and maintain the security function of equity transfer security.The third chapter is the analysis of the effectiveness of the equity transfer guarantee.This part mainly discusses whether the equity transfer guarantee is invalid due to the fluidity clause and whether the creditor has the priority to be paid.If the equity transfer guarantee contract contains the liquid contract,the "partial invalidity" of the general principles of civil law and the contract law can be applied to separate it,without affecting the effectiveness of other parts of the contract.In the case that there is no agreement or the agreement is not clear in the security contract of equity transfer,liquidation type security shall be adopted.When the creditor's right cannot be realized when it is due,and the industrial and commercial registration of equity change has been handled,under the condition of obtaining the effectiveness against the third party,the subject matter shall be evaluated,and the creditor may realize the priority of repayment by way of discount,or by way of auction or sale price.The fourth chapter is the analysis of the external effect of equity transfer guarantee,which mainly discusses the effect of disposing equity by the creditor beyond the agreement.The external effect is more complex than the internal effect because it involves many interests.First of all,by comparing the different ways of dealing with this problem under the "theory of security right" and "theory of ownership",because the "theory of ownership" is adopted,the creditor is the owner of the stock right,and its disposition behavior is entitled to dispose even if it goes beyond the purpose of guarantee,the contract agreement and without the consent of the debtor,without the scope of applying the rule of bona fide acquisition;and "theory of security right" is adopted The creditor has the right of security,not the ownership.At this time,the rule of acquisition in good faith can be applied to exclude the malicious third party and the assignee disposed based on the creditor's non legal act,and protect the debtor's interests to the greatest extent while not damaging the trust interests generated by the bona fide third party based on the appearance of rights.
Keywords/Search Tags:Transfer guarantee, Atypical guarantee, stock right
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