Research On Legal Issues Of Equity Transfer Guarantee

With economic development and social changes,the traditional way of guarantee cannot meet the financing needs of market players.Under this background,equity transfer guarantee develops rapidly by virtue of its own advantages,but at the same time,the disputes surrounding it gradually increase and the problems become increasingly prominent.Therefore,this thesis,starting from the actual situation,based on the equity transfer guarantee theory,combining with the relevant regulations and judicial status,concludes the existing problem,from the three aspects of share transfer and guarantee the contract effectiveness,Internal relations and External relations are analyzed,and then put forward improvement suggestions on equity transfer guarantee.Firstly,the validity of equity transfer guarantee contract.Combined with the theoretical theory and legislative idea,specify the effectiveness of equity transfer guarantee,and it is determined that the contract does not violate the law principles and the provisions of prohibiting the flow of guarantee,which is not a false expression of collusion.Secondly,in equity guarantee internal relations,the thesis mainly probes into the scope of shareholders’ rights guarantee the right holder.Abide by the principle of freedom of contract and the will of the parties,the guarantor right holder can exercise the shareholder’s rights within the scope agreed in the contract.When there is no agreement or unclear agreement,the security right holder shall exercise it within the scope of the purpose of the guarantee.Thirdly,equity guarantee external relations.Stake in the relationship between guarantee contains multiple main body,causing legal relationship is complex,problem more.This thesis mainly studies the following three points: whether the guarantee right holder bears the liability of defective investment,whether the guarantee equity should be used as compulsory property,and whether the third party can transfer equity from the guarantee right holder.First,when the target company is insolvent or unable to pay off its debts at maturity,based on the appearance doctrine and the trust interest protection of the company’s creditors,the guarantee right holder shall bear the liability of defective investment.However,in order to balance the interests of both parties,the guarantee right holder shall be endowed with the right to recover from the guarantor,so as to resolve the dispute.It can also solve the problem of different judgments caused by inconsistent rules.Second,when the security right holder is unable to pay off debts and its general creditors apply to the court for enforcement of the security equity,the guarantor shall file an objection against the execution by an outsider,and the court shall judge whether the formation time of the transfer of security is earlier than the time of the debt incurred by the security right holder.If the transfer of security comes first,it can be considered that the general creditor of the security right holder has a trust interest in the security equity,allowing enforcement,but not the other way around.Thirdly,during the equity transfer guarantee period,the Security holder without authorization,dispose of equity.Based on the theory of "the constitution of the security right",such disposition is an unauthorized disposition.At this time,if the requirements of bona fide acquisition are met,the third party will acquire the equity,and the guarantor cannot recover it,but can only require the security right holder to bear the liability for breach of contract or infringement.