Research On The Equity Transfer Guarantee System Of Limited Liability Companie

The equity transfer guarantee is a new type of guarantee.The purpose of guarantee is realized in the external form of transfer of equity through contractual agreement.Due to its powerful guarantee function,it is favored by creditors,and relevant judicial cases continue to increase.In response to the social demand,the Civil Code and the judicial Interpretation of Guarantee system in the Civil Code make explicit provisions on equity transfer guarantee,which is recognized by the legislative level and included in the category of"atypical guarantee".However,because the equity transfer guarantee system covers the two special attributes of the company and the equity,and is unique from the transfer guarantee system,which leads to the conflict between the judicial Interpretation of Guarantee system in the Civil Code and the relevant provisions of the Company Law,so it is necessary for legal analysis.Secondly,the legal structure of the equity transfer guarantee system is constantly disputed in the theoretical circle,and the legal structure is the basis of the equity transfer guarantee system,which determines the nature of the contract and relates to the identification of internal and external validity,which is of great significance.Therefore,the primary task is to determine the legal structure of the equity transfer guarantee system,in combination with the characteristics of equity transfer guarantee system features and China’s civil and commercial law system,it is concluded that my country should adopt the security right structure theory.However,our country’s security right structure theory has certain defects in the current legal system,and it is necessary to make targeted improvement measures.Specifically,this paper is divided into four chapters:Chapter one:The basic theory of equity transfer guarantee.Firstly,analyzing the definition and legal characteristics of equity transfer guarantee,clarify the connotation of equity transfer guarantee;Secondly,it expounds the legal significance of equity transfer guarantee system and shows the necessity of the system.Finally,compare the equity transfer guarantee system with other similar systems,analyze the references and differences,and clarify the unique legal status of the equity transfer and guarantee system.Chapter two:The present situation of equity transfer guarantee system.Firstly,it introduces the evolution of equity transfer and guarantee system,narrating the origin,development process and certification road of the system in China.Secondly,it analyzes the legislative status of equity transfer guarantee system and clarifies the implementation significance of relevant legal provisions in the civil Code and the judicial Interpretation of Guarantee system in the Civil Code.Finally,it analyzes the problems of the shareholder qualification identification standard overhead the company law structure system;the lack of guarantee publicity;the violation of commercial appearance by the rules for determination of liability for defects in shareholder’s capital contribution;the order of repayment of creditor’s rights in bankruptcy proceedings lacks legal basis,which need to be solved urgently.Chapter three:The analysis of the construction theory of the security right in the equity transfer guarantee system.The legal structure determines the content and development direction of the equity transfer guarantee system,and clarifying the legal structure is the basis for clarifying the equity transfer guarantee system.Although our country’s current legal system establishes the legal structure of the security right structure of the equity transfer guarantee system,the theoretical circles continue to dispute the legal structure of the equity transfer guarantee,which is necessary to demonstrate.Therefore,on the basis of showing the disputes over the legal structure of the equity transfer guarantee.On the one hand,I analyze the theory of equity ownership structure guarantee of the equity transfer guarantee has the defect of’the unbalance of rights between guarantor and creditor";"violate the legislative purpose of saving economic cost" and "breach of the fluidity item",therefore,it is concluded that there is no room for application in our country’s civil and commercial law system.On the other hand,through theoretical proof,it is concluded that the theory of the security right in the equity transfer guarantee has the substantive consideration of respecting the expression of the parties under functionalism,in line with the legislative objectives of the Civil Code of eliminating hidden guarantees and optimizing the business environment.At the same time,it has the advantage of complementing my country’s civil and commercial law system.so,in our country,the theory of the security right in the equity transfer guarantee should be adopted.Chapter four:Suggestions on perfecting the equity transfer guarantee system.In view of the defects of the equity transfer guarantee system,it is proposed to build a unified publicity system for movable property and rights guarantee to solve the problem of lack of guarantee registration and publicity.Then,the author uses the principle of distinction to explain the issue of equity transfer guarantee contract through the contract law,solves equity change registration issues through the company law,and solves the legal status of shareholder’s "separation of name and reality" through the establishment of the registration of equity transfer guarantee registration and publicity system.Finally,Filling the legal blank of the order of repayment of claims in bankruptcy by establishing rules for the repayment of claims in bankruptcy proceedings.To sum up,solve the problems in Section 3 of Chapter 2.