Study On The Legal Effect Of Equity Transfer Guarantee

The market economy of modern society is developing rapidly.With the increasingly strong market financing needs,typical guarantee methods have been unable to meet the needs of the contemporary market economy and trade,and private financing channels have continued to expand.Among them,the promotion of financing and the protection of creditor’s equity transfer are guaranteed.One of the contemporary new financing methods.Equity transfer guarantee refers to a guarantee method in which a debtor or a third party realizes a secured claim by transferring equity to a creditor.Equity transfer guarantee is an atypical guarantee method,which makes up for the shortcomings of typical guarantee methods,has a more flexible implementation method,and can better monitor risk and reduce financing costs.Therefore,it has become more and more important in the market financing loan relationship Multi-market entities are used as guarantee methods to guarantee the realization of claims.The transfer guarantee system behind the equity transfer guarantee is recognized in Germany,Japan,China’s Taiwan region,and China’s Macau region,and is subject to varying degrees of regulation.However,in China’s mainland,the transfer guarantee system has not yet been formally established,and whether it should be entered into the law is also controversial in the theoretical world.Because of this,the court lacks a unified basis for adjudication in judicial practice.However,the dispute over the transfer of security is showing an upward trend year by year.For example,the equity transfer guarantee studied in this article,although most courts recognize the effectiveness of the equity transfer guarantee,but the courts have not formed a unified view on their identification,nature,and effectiveness.Judgment logic,but conflicting judgments in the same type of cases,resulting in damage to judicial authority.The effectiveness of equity transfer security is controversial in both theoretical and judicial practice.This article considers that we should maintain a tolerant attitude towards equity transfer based on the jurisprudence of the constitution of security rights,theoretically overcome the theory of false intentions,and violate the real right law.The principle of statutory principles and the prohibition of violation of liquidity contracts,recognition of its effectiveness,will combine the speciality of transfer guarantees with the specificity of equity and the organization and humanity of limited liability companies,and further regulate the internal control of equity transfer guarantees on this basis And external effectiveness,to achieve a balance between the interests of the company and shareholders of the security holder and debtor,the security holder and the target equity.Regarding the regulatory approach,although this article demonstrates the legitimacy and necessity of the existence of equity transfer guarantees,but in the context of the current legal environment and the lack of a large number of theoretical studies on equity transfer guarantees,it is incorporated into the civil code in the form of statute law as It’s too early.At present,measures such as formulating special judicial interpretations,promulgating relevant guidance cases,and making full use of the relevant legal provisions under the existing legal system should be adopted to regulate equity transfer guarantees,make it fully play the role of financing and reduce credit risk,and for judicial practice Provide uniform refereeing rules.This article starts from the analysis of cases related to the effect of equity transfer and guarantee,and summarizes the focus of disputes,ruling results and judgment basis of the current judicial practice on the determination of the effect of equity transfer and guarantee through case analysis.There is a problem of inconsistent judgment logic and analysis of the reasons.On the premise of clarifying the concept and legal composition of the transfer guarantee system,the in-depth study of the effectiveness of the equity transfer guarantee is conducted in order to improve the effectiveness of the equity transfer guarantee mechanism.While providing certain theoretical guarantees,it also provides reference solutions for judicial practice.