Research On The Issue Of Equity Transfer And Guarantee Of Limited Liability Company In My Country

Transfer guarantee is a new type of financing guarantee that has been continuously developed with the prosperity of the market economy.It is a way for debtors or third parties to transfer their own stock rights to creditors to protect the creditor's rights and buy back after the debtor has paid off debts.The theory of transfer guarantee continues to develop in Japan,Germany,Korea and other countries.The Supreme People's Court held the meeting of the Civil and Commercial Trial of the National Court and made clear in terms of the effect of the contract with the guarantee and the prohibition of the fluid contract.However,other contents are not covered.From 2014 to now,in just a few years,our country has witnessed a large number of cases of equity transfer guarantee of the limited liability company,but the court made the different judgment on similar cases.The author thinks that the reason of these problems is that it is not good to grasp the essential attribute of the equity transfer guarantee,and to ignore the particularity of the equity and guarantee of the limited liability company.The legal nature of the equity transfer guarantee is the first point to the research,and the nature will have an important effect on the legal effect of the equity transfer guarantee contract.The theory of ownership and the theory of the security right constitute the two main characteristics of equity and security.The "absolute right transfer and the bound of the creditor's rights" of the theory of ownership is favored by Germany,South Korea,and Chinese Taiwan.It means that the ownership has been transferred,and the assignee is entitled to the disposition of the equity as the new owner,but the disposition of the right shall be limited by the agreement between the parties.The theory of the security right constitutes a new type of security right.It means that the assignee is entitled to a security right rather than a title,so it is not authorized to dispose of the right.In addition,that equity of the limited liability company is different from other corpore.In the light of the particularity of the equity of the limited liability company and the particularity of the equity transfer guarantee,the legal effect of the equity transfer guarantee contract of the limited liability company has become the key to the problem.Choose a legal structure that is more suitable for our national legal system.The effect may be further divided into the internal relationship(the relationship between the assignor and the assignee)and the external relationship(the relationship between the assignor,the assignee and the third person).In the internal relation,the author mainly discusses the contents of two aspects,the exercise of rights and obligations of shareholders and the implementation of the liquidation of the creditor's rights.In the theory of ownership,rights of shareholders enjoyed by the assignee,but the exercise of some rights.The payment method of the creditor's rights is diverse,and the assignee can transfer the equity directly to the third party,and the price will be refunded.Under the theory of the security right,all the equity interests are still enjoyed by the assignor,and the assignee cannot exercise the rights of the shareholders.The payment method of the creditor's right is the same as the traditional security right,and is still the discount,the auction,the sale and so on.In the foreign relations,the author mainly discusses the contents of the three aspects,the exercise of the priority of the assignees,the preemptive right of the other shareholders and the good faith of the third party.Under the theory of ownership,the assignee has acquired a stock right,and the status of other guarantors has been different,at this time,it is of course not a priority to claim compensation.However,other shareholders may give priority to the equity of the secured equity.The author makes the difference between the legal effect of the equity transfer guarantee,and the author thinks that the theory of the ownership is more suitable for the existing legal system in our country,it is simple and convenient,The low-cost creditor's right composition and the great promotion of the financing transaction are not comparable to the security right composition,but the theory of security right is challenged by its violation of the legal principle of the real right and the type of guarantee.As a security right,its role can be replaced by other security systems,and there is no need for it.