Research On The Effectiveness Of Equity Transfer Guarantee Under The Background Of Civil Code ——From The Perspective Of Explanation Theory

As an atypical guarantee form in practice,equity transfer guarantee has not been regulated by law at the beginning of its rise.Due to the different opinions on the effectiveness of equity transfer guarantee and the lack of legal provisions,the phenomenon of ’ different judgments in the same case ’ has repeatedly occurred in judicial practice.Article 71 of the " Nine Minutes " entered into force on November8,2019 provides for the effectiveness of equity transfer guarantee.Subsequently,in order to better understand the relevant provisions of the "Nine Minutes",the Supreme Court of the People ’s Court edited the "understanding and application",the provisions on the effectiveness of equity transfer guarantee in the perspective of interpretation of the detailed argument and explanation.Thus,a relatively authoritative interpretation system has been formed on the validity of equity transfer guarantee.Although the "Nine Minutes " does not belong to the category of judicial interpretation in nature,and cannot be directly used as a basis for referees to invoke,the Supreme Court encourages courts at all levels to make reasoning and argumentation on the basis of the summary.Therefore,it can be seen that the interpretation system of equity transfer guarantee effectiveness established in the "Nine Minutes" has actually played a role in determining the direction of the trial.The interpretation system is based on the assumption that the equity transfer act is ’conspiracy hypocrisy’ and thus null and void.In terms of the external effect of equity transfer guarantee,the guarantor does not enjoy equity because the equity transfer act is null and void.In terms of the internal effectiveness of equity transfer guarantee,the registration of equity change is given a higher level of effectiveness than the registration of equity pledge,and the guarantor is given the priority right to compensation by means of ex officio interpretation.There are some problems in this set of interpretation system,such as the contradiction with traditional legal theory and the contradiction between the logic of interpretation,which cannot play a substantive guiding role in the judicial practice of equity transfer guarantee.On January 1,2011,the Civil Code of the People ’ s Republic of China came into force.The ’Civil Code’ recognizes the validity of the equity transfer guarantee contract in legislation and reflects the trend of legal easing of property rights.Therefore,the introduction of the Civil Code provides an opportunity to guide the interpretation path of equity transfer guarantee.From the perspective of "Civil Code",adopting the theory of security right structure as the legal constitution of equity transfer guarantee,the transfer of equity is defined as a security right,which not only conforms to the guiding ideology of the Supreme Court that the security right holder does not enjoy equity,but also avoids the conflict between "conspiracy to false representation" and traditional legal theory.On this basis,with regard to the external effect of the security of assignment of shares,in terms of the qualification of the shareholders of the security right holder,this paper adopts an internal and external distinction of interpretation,combined with the presumption of effectiveness of the public act,to determine that the security right holder does not have equity for the guarantor,and that the qualification of the shareholders of the security right holder is judged by whether or not the other shareholders and companies are informed;in terms of the guarantor ’s liability for defects in capital contribution,following the legislative idea of ’interpretation of the security system in civil code’,this paper adopts the method of systematic interpretation and combines with the theory of ’ balance of rights and liabilities ’ to demonstrate that the guarantor does not bear the liability for defects in capital contribution.For the internal effectiveness of equity transfer guarantee,the interpretation method with “publicity” as the core is adopted to demonstrate that the guarantor can receive priority compensation.On this basis,the paper demonstrates the rationality and feasibility of the coexistence of dispositional liquidation and attributional liquidation by applying the method of literal interpretation to the interpretation of civil code guarantee system.In the case of bankruptcy,based on the nature of the transferred equity,the guarantor is given the right of exclusion.