Legal Research On The Effectiveness Of Guarantee Provided By Limited Liability Company For Equity Transfer Between Shareholders

The guarantee provided by a limited liability company（hereinafter referred to as the company）for the transfer of equity between shareholders is a special case of the company’s affiliated guarantee.The company provides guarantee for the transfer of equity between shareholders,especially when both creditors and debtors are shareholders of the company.Therefore,the guarantee provided by the company for the equity transfer between shareholders may bring certain potential risks,such as substantial capital reduction of the company,damage to the interests of creditors,damage to the interests of minority shareholders,etc.after the company assumes the guarantee liability,so there are a large number of different judgments in the same case in judicial practice.Whether the court constitutes substantial capital reduction,damage to the interests of the company,damage to the interests of creditors There are judicial differences on whether to damage the interests of minority shareholders.The law has no prohibitive provisions on the company’s guarantee for the transfer of equity between shareholders,and the law brings potential risks to the company’s guarantee for the transfer of equity between shareholders.There is a relevant relief system.For example,the company has the right of recourse against the debtor,that is,the transferee shareholder,after assuming the guarantee liability;If the creditors of the company cannot realize their creditor’s rights after the company assumes the guarantee liability,they can safeguard their own rights and interests according to the creditor’s cancellation right,creditor’s subrogation right and piercing the company’s veil system;If other shareholders who have not participated in the equity transfer believe that the company’s provision of guarantee for the equity transfer between shareholders may damage their own interests,they can apply to the court to revoke the resolution of the shareholders’ meeting,or if the company cannot realize the right of recovery from the transferee shareholders after assuming the guarantee liability,they can sue the transferee shareholders on behalf of the company to safeguard the interests of the company and themselves according to the shareholder representative litigation system,Therefore,according to the legal concept of "act without prohibition" and the relevant relief system stipulated by the law,it should be recognized that the company provides guarantee for equity transfer between shareholders,with the principle of effectiveness and the exception of invalidity.Affirming the effectiveness of the company’s guarantee for the transfer of equity between shareholders is not completely certain.The relevant provisions of the company law also impose certain restrictions on the company’s guarantee for the transfer of equity between shareholders.First,if the company provides guarantee for the transfer of equity between shareholders in violation of the articles of Association,it needs to convene a shareholders’ meeting to modify the articles of association to provide guarantee for the transferee shareholders,otherwise the effectiveness of the company’s guarantee will be affected;Secondly,when the company provides guarantee for the transfer of equity among shareholders,according to paragraph 3 of Article 16 of the company law,the transferee shareholder shall withdraw from voting,while the transferor shareholder has lost his shareholder identity when convening the shareholders’ meeting,and the transferor shareholder has no voting right basis for the resolution of the shareholders’ meeting.If the voting right of the transferor shareholder or the voting right of the transferee shareholder is counted in the resolution of the shareholders’ meeting,the effectiveness of the company guarantee will be affected;Finally,the goodwill standard of the transferring shareholder is determined according to the time when the company guarantee contract is signed.When the equity transfer contract and the guarantee contract are signed at the same time,the review obligation of the transferring shareholder to the articles of association and the resolution of the shareholders’ meeting should be stricter than that of other types of company guarantee.At this time,the review obligation of the transferring shareholder is substantive review.If the company guarantee contract is signed later than the equity transfer contract,The obligation of the transferring shareholder to review the articles of association and the resolutions of the shareholders’ meeting of the company guarantee shall be the same as that of the counterpart of other types of company guarantee.