An Empirical Study On Equity Transfer And Guarantee

As a new type of atypical guarantee,equity transfer guarantee is widely used in commercial practice,because it can meet the needs of market players to improve the flexibility of guarantee and save transaction costs,it has become a fast and efficient way of financing.However,efficiency and safety are always a pair of contradictory relationship.With the emergence of equity transfer guarantee,security issues are gradually highlighted,and conflicts and disputes are increasing.The lag of legislation and the complexity of reality make it more difficult for the court to judge.Judges often apply the law according to their own understanding of the case,which leads to the same kind of cases difficult to form a unified trial idea,which brings many problems.Therefore,based on the analysis of the current situation of judicial practice of equity transfer guarantee,this paper summarizes the main differences of contradictions and disputes in practice by combing the effective judicial documents in public databases such as China judicial documents website,and analyzes them from three aspects: effectiveness,internal relations and external relations.The first problem to be solved is whether the contract is valid or not.With the development of theoretical research,the view that the contract does not lose its validity because of violating the legal principle of real right,the prohibitive provisions of liquid contract and the false expression of will has been basically recognized.Next,after the real right publicity of equity transfer guarantee can produce real right effect,and the equity transfer behavior intention is not false will become the focus of the analysis.Secondly,the internal effect is the internal relationship between the secured party and the guarantor,which mainly involves the shareholder qualification,equity rights of the secured party and how to realize the creditor’s rights after the debt is paid off.The principle of freedom of contract enables both parties to allocate their rights and obligations by agreement,and the law will not limit and intervene them too much.Finally,the external effectiveness involves multiple stakeholders,and the problem forms are relatively complex.According to the data analysis of the case,we select the controversial issues,such as whether the creditor needs to bear the responsibility for the defective capital contribution,whether the bankruptcy occasion has the right to exclude,and so on.Through the comparative analysis of the judgment views of similar cases,we analyze the internal logic of the judgment views,and find out the irrationality correct at the right place.Due to the dual nature of equity as well as property rights and personal rights,and it is unique to the company,there will be a lot of stakeholders,so to improve the equity transfer guarantee system,we should pay attention to the balance of the interests of all parties.Therefore,on the basis of the above analysis and research,this paper makes in-depth thinking,and puts forward the analysis ideas and judgment rules for different cases,in order to improve the equity transfer guarantee system.Figure 4;Table 4;Reference 47...