Study On The Effectiveness And Realization Of Equity Transfer Guarantee In China

Since China’s reform and opening up,with the rapid development of economy,all kinds of new financing model,equity guarantee as one of them also will flourish.Equity refers to the debtor or a third party guarantee for debt guarantees in the form of transfer of equity ownership,creditors will equity return when debt have been carried out a way to guarantee.The advantage of equity transfer guarantee is not only high efficiency,strong flexibility,more for the parties to save transaction costs.It has became the preferred way of financing for small and medium-sized enterprises.Although the guarantee of equity transfer is widely used in practice,there exists the problem of the same case with different judgment results at different trial levels and between different courts in terms of effectiveness determination,that is,effective judgment and invalid judgment exist at the same time.In addition,it is difficult to balance the interests between the security owner and the guarantor,the company and the third party in the process of validity identification.Some courts refer to the existing realization way of real right of security when dealing with the realization of equity transfer guarantee,but there is no clear legal basis.In view of the above problems,this paper studies the validity identification of equity transfer guarantee,which is divided into four parts:In the first part,by sorting out ninety-three sample cases to identify the equity transfer guarantee,the author lists the table to analyze from multiple angles,and then summarizes the dispute focus and judgment basis,so as to extract the effectiveness and realization of equity transfer guarantee in judicial practice.There are two main points: first,the effectiveness of equity transfer guarantee is not unified;Second,there is a lack of corresponding procedures and methods for the realization of the equity transfer guarantee when it is recognized as valid.In the second part,based on the particularity of equity transfer guarantee,the author finds out the reasons for the inconsistent recognition and difficulty in realizing the effectiveness of equity transfer guarantee.The reasons are as follows:firstly,there is a lack of legal provisions on the equity transfer guarantee system at the legislative level.Second,the lack of authoritative case guidance in judicial practice;Third,there are disputes on the definition of the nature of equity transfer guarantee;Fourth,there are serious conflicts of interests between various subjects in judicial practice.The third part puts forward some Suggestions on the validity determination of equity transfer and guarantee according to the above problems and the existing theories,which reflects some innovation.The main Suggestions are as follows: firstly,make clear the basicprinciples that the equity transfer guarantee system should follow,then recognize the equity transfer guarantee system at the legislative level,and formulate unified standards in the judicial field,promulgation of judicial interpretations and guiding cases.Only in this way can it provide clear legal basis for the court to hear the dispute of equity transfer and guarantee.The fourth part puts forward suggestions on the realization of equity transfer guarantee.Although the realization method of fluid type is efficient,convenient and low in cost,it is easy to damage the rights of the guarantor.Although the liquidation mode is not as efficient and cost efficient as the former,it has more advantages in the protection of the interests of the parties.Therefore,the obligation of compulsory liquidation should be imposed on the security right holders,so that a variety of realization methods can be parallel and that the parties can choose flexibly,reflecting the characteristics of the flexibility of equity transfer and guarantee.