| The equity transfer guarantee system is the product of financial marketization,which is a flexible guarantee method introduced to meet the financing needs of enterprises and protect the rights and interests of creditors.Equity transfer guarantee means that the shareholders transfer part or all of their equity to the financing party as a guarantee for financing.After obtaining the financing,the shareholders can repurchase the equity,so that the enterprise can still use the equity for refinancing,and at the same time avoid the potential impact of the change of equity ownership involved in equity pledge on the company’s operation.Equity transfer guarantee is a common credit enhancing measure for commercial subjects to play the equity financing function and obtain financing funds.Its essence is to achieve the purpose of guarantee through the transfer of equity to the creditor’s name,so as to prevent the guarantor from carrying out further punishment of equity,so as to improve the possibility of creditor’s rights realization.The emergence of this system can make enterprises better balance their financing needs and shareholders’ interests in a more flexible financing mode,and improve the efficiency of capital utilization of enterprises.It has gradually become the main way of financing for small and medium-sized enterprises,and its development is in the ascending-trend.But at the same time,the complexity of equity makes the legal relationship between equity transfer and guarantee more complicated.In recent years,the promulgation of relevant laws and regulations has not made detailed provisions on the relevant legal issues in the application of equity transfer guarantee,and the relevant legal norms are still in the blank state.How to coordinate the conflicts between the relevant legal norms and construct the equity transfer guarantee system has become a problem that has received much attention and needs to be solved urgently in the current legal field.There are substantive problems in the application of equity transfer guarantee,mainly including whether the guarantor can exercise the shareholder’s rights and how to liquidated when the guarantee conditions are achieved.It also includes procedural issues,mainly including whether the actual right holder can put forward the action of execution objection for confrontation when the third party compulses the equity,and how the relevant right holder can exercise the right relief in the bankruptcy and liquidation procedure.In the construction of equity transfer guarantee system,the ownership constitution theory and the security right constitution theory can not perfectly solve the difficulties encountered in the practice of equity transfer guarantee.Therefore,on the basis of comprehensive legal provisions and full measurement of the interests of the parties,we should adhere to the constraints of security real right and debt law,that is,adhere to the security real right as the main principle.In the case of not violating the law,the parties shall respect the provisions of the equity transfer guarantee agreement.In the entity aspect of the equity transfer guarantee system,the guarantee right holder can exercise the shareholder’s rights,but the exercise of the rights should be restricted by the purpose of the guarantee and the autonomy of the parties.In terms of the liquidation mode,the effect of belonging liquidation should be recognized,and the liquidation mode should be dominated by belonging liquidation and supplemented by disposition liquidation.On the procedural issues involved,the public rules of equity transfer guarantee should be refined,and the principle of commercial appearance doctrine should be adhered to counter the objection raised by the right holder.In the bankruptcy liquidation procedure,the guarantor is given the right of exclusion,and the exercise of the right of exclusion is restricted. |
