Research On The Legal Issues Of Equity Transfer And Guarantee

Equity transfer guarantee is an atypical security system that developing with the development of commercial transactions.There are still many problems to be solved in theory and practice.The article will discuss from two perspectives:interpretation theory and legislative theory.Chapter Ⅰ defines the concept of equity transfer and guarantee,clarifies that equity transfer guarantee is to ensure the performance of debt,equity transfer after debt settlement,debt is not paid off and priority is paid.Through the analysis of various transaction purposes and the true intention of the parties,the equity transfer guarantee and equity pledge,equity nominee holding and equity transfer system are compared,which paves the way for the analysis of whether the transferee has shareholder rights and whether analogy should be carried out in the determination of validity.Chapter Ⅱ introduces various doctrines on equity transfer security,including the theory of the composition of ownership,the theory of security ownership.Then,various problems arising in theory and practice are sorted out to test the application of various constituent theories.In theory,different scholars still do not agree on the doctrine of the composition of effects,which can be further analyzed in the article.Because the doctrine of validity is not clear,the legal status and rights and obligations of the transferor and the transferee are not clear,such as whether the transferee is a shareholder and whether it can exercise equity,and the court’s judgment views are also divided into four types,namely,the transferee does not have shareholder qualifications and cannot exercise equity,the transferee does not have shareholder qualifications but can exercise equity,the transferee does not have shareholder qualifications but does not indicate whether it can exercise equity,and the transferee has shareholder qualifications and can exercise equity.Because the composition of effects has not been determined and the current law lacks clear provisions,legal interpretation and institutional construction are also required for external effects.After analyzing the relevant problems arising in theory and practice,combined with the purpose of this system to ensure the realization of creditors’ rights,save costs and promote economic development,the advantages and disadvantages of various theories are analyzed one by one.The adoption of ownership constitutes a shareholder,and when the transferee disposes of the equity externally,it becomes the right to dispose of it,and the grantor will lose ownership of the equity,increasing its risk and reducing the willingness of the parties to use such transactions,which is not consistent with the purpose of the system to promote economic development.At the same time,the theory of ownership composition does not pay attention to the essence of the system.The theory of security ownership is a new theory that has emerged this year,and there is a huge time cost in upgrading to a legal security right or becoming a customary law through a legislative perspective,so the constitutive doctrine that equity transfer security should adopt should be the theory of security rights,and should be handled with reference to the most similar rules of equity pledge,which is a typical security interest,which is not only supported by judicial interpretations,but also has a theoretical basis in comparative law.However,the mere use of a security right does not perfectly solve all problems,and if the transferee can exercise the rights of shareholders,the holder of the security right does not bear any shareholder liability externally,which violates the principle of consistency of rights and obligations.Reference can then be made to the practice in comparative law in Germany,which,on the basis of the doctrine of constitutive ownership,identifies the transferee as the holder of the security right in the insolvency of the assignee,which adds other effects to the balance of interests on the basis of one effect composition.Taking this as an inspiration,China’s transfer-security system,on the basis of adopting the theory of the composition of a security right,can add ownership effect to the determination of external effectiveness and make the transferee bear the corresponding shareholder responsibilities in the case of stipulating that the transferee can exercise the rights of shareholders.In the context of the determination of internal effectiveness,since the parties to the equity transfer and the target company were aware of the transfer of the secured transaction,it should still be implemented that the security right constitutes and no additional title effects are required in any case.This solution can maximize the institutional purpose of equity transfer guarantees,which is described in more detail elsewhere in the article.Chapter Ⅲ clarifies the legal status of an equity transferee as the holder of a security right.Chapter Ⅱ of the article identifies the essence of an equity transfer security as security right and concludes that the transferee should be the holder of the security right.In the organic law,the approval of the transaction mode of assignment by other shareholders of the target company does not indicate acceptance of the shareholder status of the security holder,and the industrial and commercial registration of shares is not the basis for creating shareholder qualifications,thus confirming the transferee’s status as the security right holder.In the absence of an agreement on the exercise of equity by the guarantor,the determination of effectiveness should strictly follow the theory of the composition of the security right and refer to the most similar equity pledge rules.From the perspective of the security holder’s supervision and control of the subject equity,although the security holder does not have shareholder qualifications,it is reasonable for the security holder to exercise part of the shareholders’ rights,which not only satisfies the principle of autonomy of will,but also separates the shareholder qualifications from the equity rights,and the rights of the equity can also be separated.Then,the conditions for the exercise of equity by the security holder are analyzed,which should first comply with the provisions of the law,improve the system structure,and clearly stipulate the scope of shareholders’ rights that the security holder can exercise,which is in line with the economic purpose of the system;Secondly,it should not exceed the agreement between the parties;Third,the exercise of the identity rights of shareholders of a limited liability company should take into account the need to maintain the personal integrity of the limited liability company,and with the consent of a certain proportion of shareholders,the specific resolution procedure and proportion can refer to the procedure of the limited liability company to realize the right of preemption.Chapter Ⅳ mainly analyzes the relationship of rights and obligations between the guarantor and the holder of the security right in the equity transfer security and between it and the target company.First of all,in the determination of the equity transfer agreement,adopt a holistic thinking,regard it as an important link of equity transfer and guarantee,and there is no intention to buy or sell equity between the parties but there is a true expression of intention to transfer equity and guarantee,so there is no situation that causes the contract to be invalid,and the equity transfer agreement is valid.Secondly,the chapter analyzes the rights and obligations.between the security holder and the guarantor,clarifies that the security holder has the right of priority to be paid,the right to receive fruits and the right to preservation,and can exercise the rights of shareholders under the circumstances of the agreement,and defines the scope of the equity that can be exercised,and the shareholders’ rights that the security holder can exercise include the right to vote on major matters,the right to dividend and the right to know,so as to achieve the purpose of safeguarding the right of supervision of the security holder without infringing on the interests of the target company.The right is accompanied by an obligation of good custody by the holder of the security right and an obligation to return the conditions triggering the repurchase.The obligation of the guarantor is mainly to cooperate with the security holder,mainly to assist in the registration of changes,and if it is agreed that the security right holder can exercise the rights of shareholders,it should cooperate with the security holder to exercise its rights and go through the preliminary formalities in the target company.With regard to the obligations of the guarantor,before the expiration of the period for performance of the obligation,the guarantor may exercise the right of recovery if it has no right to dispose of the equity and does not meet the conditions for acquisition in good faith,and at the same time has the right to claim the return of unjust enrichment when the security holder is paid beyond the scope of the guarantee.Chapter Ⅴ deals primarily with the weighing of interests between guarantors,security holders and the target company and its creditors.When dealing with relevant issues,first consider whether the external third party belongs to the third party to be protected by the appearance doctrine,and if the equity is used as the transaction object,then the third party belongs to the third party that the appearance doctrine needs to protect,and it is directly handled in accordance with the legal status embodied in the appearance doctrine.If it is not a third party whose appearance needs to be protected,the legal effect cannot be determined according to the state in which the appearance is presented,and the specific operational aspects of the validity determination should depend on ’the agreement of the security holder to exercise its equity.If the exercise of shareholders’ rights is agreed,the effect of the right is added to the theory of the composition of the security right if the conditions are met,and the holder of the security right is recognized as the owner and bears external liability,provided that the interests set out in chapter Ⅱ of the article are to achieve a balance of interests and not to prejudice the interests of entities other than the guarantor and the security holder.In the case of defective capital contribution,the creditor of the company is not the object of the appearance doctrine protection,and in the case of the exercise of shareholder rights by the security holder,the ownership effect is given externally,so that the security holder bears the liability for the defective capital contribution,and if there is no agreement on the exercise of equity by the security holder,the security holder does not bear the liability for the defective capital contribution.In the case of the transfer of the underlying equity before the expiration of the debt performance period,the third party belongs to the third party that should be protected by the appearance doctrine,so the legal effect should be given by the status of rights publicized.In the case of insolvency,in the case of the security holder’s insolvency,the guarantor exercises the right of repossession,and if it is agreed that the security holder may exercise equity,it still cannot confer ownership effect and attribute the equity to the security holder’s insolvency estate;In the event of the bankruptcy of the guarantor,the holder of the security right has the right to exclude the encumbered equity,and even if it is agreed that the holder of the security right can exercise the equity,it cannot give external ownership effect;In the case of the insolvency of the target company,the security holder and the target company have not established a legal relationship of guarantee,nor have they formed a creditor-debt relationship,and cannot obtain priority payment.No matter which of the guarantors and the security holder is the debtor,and whether or not it is agreed that the security holder can exercise the rights of shareholders,it cannot be given ownership effect externally,because through analysis,it can be seen that the legal status of the security right holder to the owner cannot meet the needs of balancing the interests of various subjects and does not meet the conditions for additional ownership effects.