Research On Equity Transfer And Guarantee Issue

Compared with the typical security rights,the most important feature of the concession guarantee is the realization of the secured creditor's right through the transfer of ownership.As an atypical security system,it is born out of the booming commercial practice,and is passed through judicial precedent and theoretical theory The 100-year calendar of practice has continued to develop.In the civil law countries where the property law system is based on ownership and strictly distinguishes claims and property rights,since the granting of guarantees is not a guarantee method expressly provided by law,its effectiveness was met by theoretical circles at the early stage of the development of the granting guarantee system.Violent criticism,judicial judgments also often use the reasons of granting guarantees “violating the statutory principles of property rights”,“equity transfer as a false expression”,and “violating the provisions of liquidity prohibition”,etc.,thus denying the effectiveness of granting guarantees.In order to realize the legalization of the concession guarantee,Germany and Japan explained the concession guarantee with the "ownership composition theory" and "security right composition theory" respectively.Equity transfer guarantee is a kind of guarantee as a guarantee.In my country,its effectiveness has also experienced the above-mentioned doubts.The judicial judgment has gradually clarified its attitude towards the transfer guarantee.Specifically,it includes the following three levels: first,the validity of the equity transfer guarantee contract;second,the nature of the equity transfer guarantee,and third,the nature of the transfer of the security right holder's rights in the equity transfer guarantee,that is,its Whether they enjoy equity or security rights,the resulting question is whether the grantor of the security right enjoys the status of shareholder,whether it can exercise the corresponding shareholder's rights and assume its obligations as a shareholder.Judicial decisions on the first two issues have been converging,and the "Minutes of Minutes" has also been confirmed.However,on the third issue,due to the dual nature of property rights and personal rights,plus the company's The addition of the subject makes the issue of confirmation of shareholder qualifications more complicated.Not only that,there is no mature theoretical doctrine in China on the basic interpretation of the transfer path of guarantee and whether the equity can be used as the subject of the transfer guarantee.Controversy.This article starts with empirical research,on the one hand,analyzes the overall trend of China's equity transfer and guarantee from the macro level;on the other hand,for the identification of shareholder qualifications,from the transfer of the parties to the guarantee,between the transfer of the security right holder and the company The three-level relationship between the transferee and the transferee of the security right and an external third party summarizes the underlying logical thinking of the judicial decision on this issue.Secondly,it analyzes the problems existing in the judgment of judicial practice: First,the premise of the judicial judgment is to recognize the "security right composition theory".Therefore,the theoretical community needs to respond to the "ownership composition theory" scholars' questions and argue to adopt "security rights" The legitimacy foundation of the “construction theory”;secondly,the judicial adjudication ideas have overridden the company law's standard for determining the qualifications of shareholders,thus leading to many disputes in practice.Finally,the article endorses the "security right composition theory" and explains the main reasons for adopting the "security right composition theory";on the basis of the recognition of the "security right composition theory",it is believed that in principle,the record of the shareholder register should be the standard Shareholders are entitled to shareholder qualifications,but the target company has a strong personal fit and the company and other shareholders know that the transfer of equity is the guarantee for the transfer,and the transferor may be deemed to be eligible for shareholder qualifications.At the same time,in order to balance the rights of the parties,the transferor of the security right is required to have a general restriction obligation and a special restriction obligation for the purpose of security,and it explains that the transferor of the security right violates the obligation to exercise the equity The corresponding legal consequences to be undertaken to explain the confirmation of the qualification of shareholders in the practice of equity transfer guarantee in China.