| As an atypical form of guarantee arising in practice,the equity cession guarantee reflects the demand for financing by business entities.With the increasing frequency of equity cession guarantee disputes in practice,The 2019 minutes of Civil and Commercial Judicial Work Meeting of the National Courts(hereinafter referred to as the "Nine People’s Notes"),responded by focusing on the validity disputes in judicial decisions and establishing the validity of equity cession guarantee agreements.The 2021 the Supreme People’s Court on the Application of the Guarantee System in the Civil Code of the People’s Republic of China(hereinafter referred to as the Judicial Explanation of the Guarantee System)inherited and developed on the basis of the "Nine People’s Notes",making the validity determination and the liability of shareholders’ contribution no longer controversial.From the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code),which does not directly recognize the alienation guarantee,to the Judicial Interpretation of the Guarantee System,which recognizes the effectiveness of the guarantee of equity cession,it can be seen that the legal attitude toward the security of the transfer of shares has gradually eased,but the dispute in the security of the transfer of shares is not a single issue of effectiveness,in practice,the disputes on the realization path of the rights of the guarantor need to be solved.so this paper will start from the theoretical basis of the security of the transfer of shares,the security of the transfer of shares and the realization of rights to carry out research.This paper starts from the theory of the legal formation of the security of the transfer of shares as the logical starting point,after analyzing the different theories,and from probing into the real intention of the parties when signing the agreement of the transfer of shares as security,clearly our country should take the security right constitution.Secondly,when the debt can not be paid,the creditor claims priority,in the way of realization of rights in equity transfer guarantee,should first consider the parties agreed,no agreement,the granting of an option to the security right holder is more in keeping with the creation purpose of the assignment of security.At the same time,the effectiveness of the attribution clause agreed upon by the parties is recognized subject to the completion of the liquidation obligation of the secured right;if there is a need to change the price of the secured equity,the rights of the security holder are reflected in the preferential payment of the equity variable.Finally,the security of transfer of equity belongs to the real transfer of equity in the realization stage,in the realization process of rights can not ignore the impact on the stakeholders,in addition to the creditor debtor’s interests to measure,the preemption rights of other shareholders in the company should also be clarified in order to balance the interests of the parties and ensure the smooth realization of the security right transferred. |
