Research On The Effectiveness Of Equity Transfer Guarantee

The effect produced by the equity transfer and guarantee can be divided into internal effect and external effect,among which the internal effect can be divided into the effect of the creditor’s rights produced by the voluntary act and the effect of the priority compensation caused by the means of the transfer of the equity.In terms of the validity of the creditor’s rights of equity transfer and guarantee,it first needs to be clear that although there are multiple contracts in the legal relationship between equity transfer and guarantee,joint contracts occur between multiple contracts.To study the effectiveness of equity concession and guarantee under the premise of joint contract,it is necessary to consider the effectiveness of each contract alone,but also to study multiple contracts together.Secondly,after clarifying the mode of contract effectiveness of equity transfer and guarantee,the legal and effective contract of equity transfer and guarantee is the premise of its validity.Equity concession and guarantee as a creditor security does not create a new type of real right and therefore does not violate the legal principle of real right.At the same time,there is no false representation in the equity concession and guarantee,so it will not be invalid because of the false representation of the conspiracy intention.Moreover,the liquidation clause exists or is presumed in the equity concession and guarantee,thus avoiding the possibility that the equity concession and guarantee constitutes a flow guarantee.Thirdly,equity transfer and guarantee is essentially a kind of creditor’s rights guarantee,and the realization of its guarantee effect is also based on the agreement between the guarantor and the guarantee holder.Specifically,the realization of the guarantee effect in the equity concession and guarantee is reflected in that when the creditor’s rights cannot be paid off after the expiration of the period’s repayment of the creditor’s rights,the guarantor may at least let the equity auctioned and sold so as to pay off the creditor’s rights it enjoys.In terms of the priority compensation effect of equity transfer and guarantee,the transfer of equity ownership makes the equity and guarantee away from the dominant scope of the guarantor,fundamentally eliminate the possibility of the posterior guarantor,and avoids the occurrence of equity transferor disposal without authorization,so as to realize the actual priority compensation effect.However,equity concession and guarantee,as the guarantee of atypical creditor’s rights,want to have the property effect of priority compensation by real right,it is necessary to meet the unified logic of priority compensation effect in the typical guarantee real right.For the typical security property right,the establishment of rights and the occurrence of priority compensation effect are two different processes.The establishment of rights varies according to the provisions of the law,but the premise of the priority compensation effect is the completion of the public act.However,in the process of equity transfer and guarantee,there are both industrial and commercial registration and shareholder roster records.In order to determine the public way of equity transfer and guarantee,it is necessary to study the nature of equity.In fact,although the equity ownership and the shareholder qualification are two sides,but the two parts are also relatively independent.The list of shareholders only represents the company’s recognition of shareholders,and industrial and commercial registration is the public way of equity transfer,equity transfer and guarantee.Therefore,the equity concession and guarantee have the priority compensation effect in the completion of the industrial and commercial registration.When the equity concession and guarantee have priority effect,there is the meaning of the meaning of purpose.In other words,the equity concession and guarantee pursuit is that the guarantor has certain rights to ensure the realization of the creditor’s rights,but the effect of the means of its transfer of the equity is that the guarantor enjoys the stronger equity ownership than the general guarantee right.In order to prevent the abuse of the rights,the equity concession and guarantee make relative restrictions on the exercise of the rights through purposeful terms.In equity and guarantee external confrontation effect,first of all,in equity and guarantee to trade counterpart effect,when other shareholders of equity and guarantee,the company resolution through the ownership transfer belongs to commercial risk,in this case the guarantor loss can only be investigated for the guarantor’s liability for breach of contract.When other shareholders are informed,the company’s consent to the retransfer of ownership is invalid because it constitutes malicious collusion.Second,in the equity and guarantee against the creditor of the guarantor,when the equity of the debt outstanding period,equity and guarantee against the guarantor creditors,the guarantor creditor has no right to request the court to enforce and guarantee equity to pay off the guarantor to its debt.When the repayment period of the debt guaranteed by the equity expires,the claim cannot be repaid,and the guarantor fails in exercising the security rights and damages the rights of the creditor of the guarantor may exercise the right of subrogation and priority instead of the guarantor through judicial means.In terms of the antagonistic effect of the equity transfer and guarantee on the creditors of the company,if the guarantor is aware of the default of the guarantor at the transfer of the equity,it shall bear supplementary liability with the guarantor to the debtor of the company,and if not aware of the equity,it shall not be liable.At the time the company enters bankruptcy proceedings,since the guarantor is not a creditor of the company,it cannot stand against the company’s creditors and has no right to claim that the company has satisfied its claims.