Research On The Right Structure Of Equity Transfer Guarantee

As a new type of guarantee,equity transfer guarantee is not covered by legislation but flourishes in commercial practice.The structure of rights between the secured party and the guarantor,the company and other shareholders,and the third party is complex due to the special nature of equity,and the interest balance is difficult.There are some problems in judicial judgment,such as different standards,lack of reasoning,logical confusion and so on.In order to standardize the judgment logic and clarify the right structure,we should distinguish the internal and external relations of equity transfer guarantee,explore the true meaning of the parties freely in accordance with the contract,and balance the interest relationship between the parties and the third party in accordance with the outward appearance.Because the Civil Code(Draft)of our country does not stipulate the assignment guarantee,it is not advisable to set up another clause in the already formed relatively stable legal system in terms of legislative technology and lack of reality.Therefore,how to find a suitable interpretation path for the equity transfer guarantee in the existing legal system,so that the equity transfer guarantee can operate flexibly within the existing normative framework,so as to achieve a balance between the stability of the law and the actual needs,is the focus of this paper.In view of the above problems,this paper is divided into three chapters:The first chapter raises questions.By the method of analyzing the judgment position and normative position of the equity transfer guarantee dispute,this paper concludes that there are some problems in the judicial judgment,such as different judgment standards,insufficient reasoning,logical confusion and so on.Specifically,in the internal relations,the scope of the exercise of the rights of the secured party,the relationship between the secured party and the company and other creditors,and whether the secured party has the priority to be paid are not clear;in the external relations,whether the secured party’s disposal of the equity to the third party is effective,and whether the company’s creditors have the right to request the secured party to undertake the withdrawal of capital contribution There are disputes on the liability and the legal status of the secured party when the company goes bankrupt.The second chapter analyzes the legal basis of equity transfer guarantee.The definition of the nature of equity transfer guarantee is not only the basis of understanding the internal and external relations accurately,but also the logical starting point of analyzing the rights structure of the parties.The legal structure of the security of share transfer should adopt the theory of security right structure,and the property of right is real right security.At the same time,the relevant systems are analyzed to clarify the extension and scope of application of equity transfer guarantee.Equity transfer guarantee and equity escrow have analogical and applicable interpretation space in terms of normative purpose,right structure,etc.we should refer to the principle of "double standards,internal and external differences" of equity escrow,and distinguish the different applicable standards of internal and external relations.The third chapter defines the internal and external relations of equity transfer guarantee.As far as the internal relations are concerned,we should follow the freedom of contract and the essence of security right,and explore the real intention of the parties.Among them,the relationship with the company and other creditors should be judged on the basis of knowledge,and the register of shareholders has a constructive effect.As far as the external relations are concerned,we should follow the principle of appearance,improve the efficiency of transaction,protect the security of transaction,and balance the interests of the parties and the third party.