Study On The Effectiveness Of Equity Transfer Guarantee

At present,most of the academic studies on the effectiveness of equity transfer guarantee focus on whether the equity transfer guarantee is effective,while ignoring the effectiveness of typical guarantee,the effectiveness of liquid contract and the effectiveness of the counterpart of the company in the settlement procedure after the recognition of effectiveness.Specifically,this paper is divided into seven parts in terms of style.The first part is the introduction.The second part is the identification of equity transfer guarantee.It studies the composition of equity transfer guarantee in the judicial interpretation recently issued by the Supreme People’s Court,and puts forward the view that whether there is equity buyback clause and whether shareholders actually enjoy the rights of shareholders are not the essential elements to distinguish equity transfer guarantee from equity transfer.The third part and the fourth part are about the nature,priority and the influencing factors of the validity of the guarantee.Before the issuance of the Minutes of the Nine People’s Conference,there had been controversy in the academic world about whether the non-typical guarantee of transfer guarantee was effective.The reasons for the invalidity of transfer guarantee in the academic world include the theory of false collusion,the theory of violating the principle of legal right,the theory of liquid contract and the lack of legal publicity procedure.The fifth part is to study the effectiveness of equity transfer guarantee in the settlement procedure.The settlement order between the guarantee of equity transfer and the common creditor’s right is actually the priority problem of the guarantee of equity transfer.The problem of the order between the guarantee of the transfer of equity and the typical real right of security can be solved by analogy by applying the rule of Article 65 of the Minutes of the Nine People’s Meeting.The validity of liquid contract is the core problem in the settlement of equity transfer and guarantee.Based on three reasons to ban liquid principles also can be applied in the guarantee of equity,but there is a special case,namely when the equity alteration registration has been completed,and creditors continue to set up the equity pledge upon different to the stake,under the condition of the agreed terms of liquid between the creditor and the debtor has the force of law.The sixth part is the effectiveness of equity transfer guarantee to the counterpart of the company.The concept of security right and nominal shareholder in the company law is not exactly the same.In terms of the effect on the counterpart of the company,the provisions of the company law can not be applied in the case of equity transfer and guarantee.The provisions of Article 69 in the Judicial Interpretation of the Civil Code of the Supreme People’s Court did not actually promote the solution of this problem.The seventh part is the legislative proposal about the validity of equity transfer guarantee.The Judicial Interpretation of the Guarantee System in the Civil Code of the Supreme People’s Court includes a special chapter on the non-typical guarantee system,which is a legislative progress,but there is still room for further improvement of its individual clauses.I think,first of all,"private lending judicial interpretation"article 23 can be integrated into the guarantee system of the civil code of judicial interpretation "of article sixty-nine,second,in the principle of judicial interpretation expressly prohibited liquid moderate problem,and finally,further provides guarantee of equity in the judicial interpretation of the effectiveness of the company the other party.