Research On The Legal Issues Of Equity Transfer Guarantee

Equity transfer guarantee is an important way for small and medium-sized enterprises to obtain financing.Although its effectiveness has been solved at the legislative level,it has always been regarded as an "atypical" guarantee mode,which is contrary to the civil law guarantee system to a certain extent.At present,it is difficult to form a unified judgment standard for this problem with the current judgment ideas and logic,which leads to the uneven judgment results of courts in different places.The main part of this paper is about the establishment and effectiveness of equity transfer guarantee.The issue of setting includes the following four aspects: first,how to judge whether an agreement is equity transfer or equity transfer guarantee.This can not be judged simply according to the idea of "referring to the real intention of the parties" in the current judicial judgment.We should refer to the three elements of the assignment guarantee contract specified in the interpretation of the guarantee part of the civil code(Draft for comments).The second is the liquidation clause of the equity transfer guarantee,which is the pre procedure for the equity transfer guarantor to exercise the priority of compensation.Its function is to avoid the suspicion of liquid contract and prevent the creditor from excessively depressing the equity.The third is the right to take back of the transferred guarantor,which is the necessary clause to release the legal relationship of equity transfer guarantee after debt repayment.The fourth is the registration of equity transfer guarantee,which should be taken as the confrontation element of equity transfer guarantee and handled by the way of separate registration,which is different from the real equity transfer registration.The purpose is to protect the bona fide third party and ensure the priority of creditors.As for the internal effect,we should first discuss the nature of the rights enjoyed by the transferor in the equity transfer guarantee,that is,whether the transferor enjoys the equity or the security interest.The resulting problem is whether the transferor enjoys the shareholder qualification,whether he can exercise the corresponding shareholder rights and undertake the obligations as a shareholder.In this regard,in principle,the record in the register of shareholders should be taken as the standard,and the transferor of the security right should be recognized as a shareholder.However,because the company has a strong human compatibility,and the company and other shareholders know that the essence of the equity transfer is the transferor of the security right,the transferor of the security right should be recognized as a real shareholder in principle and exercise the rights of shareholders.However,under special circumstances,it can also be agreed that the shareholder’s rights shall be exercised by the mortgagee,but the exercise of the shareholder’s rights shall be reasonably limited.For example,for other shareholders of the company,they should abide by the obligation of notice and reasonably protect their right to know and preemption;When there is a conflict between the rights of the creditor who enjoys the equity guarantee and other ordinary creditors of the equity transfer guarantor,the equity transfer guarantee should be recognized according to the security interest to ensure the priority of the equity transfer guarantor;The legal effect of unauthorized disposal of equity by both parties should distinguish the subjective situation of the third party in the transaction,and the legitimate acquisition of the third party in good faith should be supported by law.In addition,the liability of the equity transferor for insufficient capital contribution should be clear that the equity transferor as a nominal shareholder does not need to bear joint liability.