Research On The Validity Of Equity Transfer And Guarantee

As an atypical guarantee,the theoretical circle has been disputing whether it should enter the civil code.However,in judicial practice,it is not difficult to find the strong vitality of the transfer guarantee.Equity transfer guarantee is a widely used type of transfer guarantee.Due to the particularity of equity and the incorporation of the company as the main body,equity transfer guarantee not only has general problems existing in the category of transfer guarantee,but also has many more complicated differences and controversies.Although the Supreme People's Court has made some explanations on the effectiveness of the transfer guarantee in recent years,it still remains to preliminarily regulate the effectiveness of the contract and the effectiveness of the real right,and has not made any clear provisions on the realization of the transfer guarantee of the equity and its effectiveness for different subjects.As a result,courts at all levels have no more reference standards and guidelines when dealing with disputes over the transfer guarantee of the equity,making it difficult to realize the balance of interests between the parties to the contract,other shareholders of the company and other third parties.Therefore,as the share transfer guarantee is more and more widely used in practice today,it is urgent to issue in-depth interpretation rules to clarify and break through the current inconsistent and incomplete judicial decisions.The main approach to explore the effectiveness of equity transfer guarantee in this paper is to make an empirical analysis of real cases.In the first chapter of this paper,besides summarizing the characteristics,advantages and distinguishing criteria of the equity transfer guarantee,the focus is on sorting out and summarizing the retrieval results of actual cases.Through the statistics and analysis of 132 real dispute judgment data,the author hopes to put forward practical problems.In the empirical analysis,the cases in this paper are counted separately with the variables of year,region and trial level,and the identities of plaintiffs and their litigation requests in each case are further sorted out,thus reflecting the current situation that the issue of the effectiveness of the equity transfer guarantee is easy to cause disputes,the relationship is complicated and the opinions of the courts are different in practice.Furthermore,according to the sorted out litigation requests,several issues of the effectiveness of the equity transfer guarantee that this paper will focus on analysis are drawn out.They are respectively the effectiveness of the equity transfer guarantee contract and the realization of the security right,the exercise of the equity of the guarantor and the protection of the interests of other shareholders,the priority of compensation of the guarantor and other external effectiveness issues.These issues can be classified into the effectiveness for the guarantor and the guarantor,the effectiveness for the company and other shareholders,and the effectiveness for other external third parties.Chapters II,III and IV of this article will discuss these issues respectively to explore the effectiveness of the equity transfer guarantee for different subjects.On the issue of internal effectiveness,that is,the effectiveness of the two parties to the contract,namely,the guarantor and the guarantor,this paper firstly confirms the contractual effectiveness of the equity transfer guarantee,and refutes the view that the equity transfer guarantee contract is invalid from three aspects: never constitutes a conspiracy of hypocrisy,does not violate the legal principle of real right and cannot constitute an obstacle.On this basis,this paper further analyzes the rights and obligations of both parties and how the guarantor in different types of equity transfer guarantee should realize their security rights after the contract is effective.On the issue of the effectiveness of the company and other shareholders,this article first sorts out the different judgments of the court on whether there is an agreement in the judicial practice,and states the author's view that the equity held by the guarantor should be analyzed from the aspects of enjoyment and exercise,while the second section elaborates how to protect the interests of other shareholders in the company in the equity transfer and guarantee relationship,including the application of the system of the company's consent right and the issue of shareholders' preemptive right.The last chapter of the article is on the effectiveness of other external third parties in the company.This chapter first affirms the enjoyment of the secured party's priority in compensation,and analyzes how to protect the third party's trust interests under various circumstances,and how to protect the interests of the guarantor and the secured party when the general creditor requests to exercise the cancellation right.The issue of the effectiveness of the equity transfer guarantee involves many subjects.Litigation claims and the focus of disputes are complicated.Under the background that laws and regulations have not yet clearly stipulated and a complete and effective judgment logic has not yet been formed,the court should guide the effective realization of the equity transfer guarantee right as far as possible on the basis of respecting the autonomy of both parties,so that it can fulfill the purpose of foreign financing of natural persons or companies and stimulate market activity.And when analyzing its effectiveness to the company,shareholders and other external third parties,it clarifies the distinction between its internal effectiveness and its internal effectiveness,protects the trust interests of the third parties,achieves a balance of interests,and achieves a fair judgment.