Research On The Legal Effectiveness Of Equity Transfer Guarantee With Fluidity Guarantee Clauses

Paragraph 2 of Article 68 of the Judicial Interpretation of the Guarantee System has clearly denied the legal effectiveness of the transfer guarantee with fluidity guarantee clauses.The theoretical has put forward a countermeasure to replace the liquid-type implementation method with the liquidation path under the framework of the "Judicial Interpretation of the Guarantee System".However,even under the premise of ensuring fairness and priority,the liquidation method is adopted based on the consideration of efficiency value,but it is still unable to take into account and meet the needs of commercial entities for low-cost and high-efficiency transactions.It is especially important to seek new solutions within the existing legal framework.Paragraph 1 of Article 388 of the "Civil Code" expands the scope of guarantee contracts and recognizes the validity of various types of guarantee contracts,which leaves a gap for the construction of the ceding and guarantee system.The legalization,systematization and standardization of assignment guarantees already have a solid legal foundation.At present,the prohibition of fluidity contract has hindered social and economic development and progress.In order to further meet the needs of freedom of commercial transactions,facilitate efficient transactions and balance the interests of all parties involved in transactions,it is necessary to release the prohibition of fluidity contract.Moreover,the equity transfer guarantee is more complicated than the general property transfer guarantee.Once the equity is registered in the name of the creditor as a guarantee,it will inevitably have various impacts on the company,other shareholders,and the company’s creditors.Such as equity value identification,realization and repurchase are more difficult to operate than physical transfer guarantees.Fluidity contract seems to have stronger demand in equity transfer guarantees.In view of the inconsistency of the complete lifting of the ban on liquid guarantees at this stage,it may be possible to consider the limited release of liquid guarantees in the equity transfer guarantee,gradually explore the feasibility of legalizing liquid guarantees,and resolve the negative effects brought by the prohibition of the fluidity contract.The article will take the limited liability company as the perspective,and takes the characteristics of equity,the conflict and coordination between the company law and the guarantee law as the basis,searching the necessity and feasibility of releasing the liquid clause in the equity transfer guarantee.In order to deal with the legitimacy of fluidity clauses in the equity transfer guarantee,we should pay attention to the principles of "respecting the autonomy of the parties","based on the particularity of equity",and "balancing the interests of all parties",and make rules under these principle.Applicable model of the liquidation clause of the transfer guarantee.In the design of the specific rules for the liquidation clauses of the equity transfer guarantee,the first is to establish the applicable preconditions for the liquidation-type implementation method,the second is to construct a multi-level implementation method including the liquidation,and the third is to improve the registration and publicity system to maintain the transaction.Safety,the fourth is to prevent the abuse of liquid clauses by creditors by restricting the ratio of the secured property to the secured claims and reasonably allocating the burden of proof.It is advisable to sparse and not block the liquid terms of equity transfer guarantee.Legislators should fully consider the reasonable needs of commercial practice,explore the advantages of liquid clauses,and avoid weaknesses.While fully guaranteeing party autonomy and improving transaction efficiency,and focus on resolving the side effects of the fluidity clauses.