Research On The Effectiveness Of Buy-Sell Equity Transfer Guarantee

As a guarantee of equity transfer in the broad sense,there are different ideas of adjudication in judicial practice because it has not yet been regulated by legislation,and its effectiveness is constantly disputed in academic circles,focusing on the characterization of the act as "share or debt".The Minutes of the National Conference of Civil and Commercial Courts(hereinafter referred to as the "Nine Civil Minutes")and the Interpretation of the Supreme People’s Court on the Application of the Civil Code of the People’s Republic of China Concerning the Guarantee System(hereinafter referred to as the "Interpretation of the Civil Code Guarantee")have made several core points regarding the cession of After the guiding provisions of several core elements of the guarantee,the cases of equity transfer guarantee,which used to be regarded as equity investment,were re-designated as the nature of debt guarantee.At this point,it appears that the dispute over the nature of this type of transaction has been settled,and that the doctrine of constitution of security rights,which characterizes the equity transferee as a nominal shareholder with no actual shareholder rights,is equivalent to the determination of the "debt" nature of the equity transfer guarantee.However,the path of interpretation to the legal effect of the transfer of equity does not affect the effectiveness of the contract as the base,and through the ex-officio interpretation of the transfer of the registered act of registration is higher than the effectiveness of the registration of security rights,the equity transferee can enjoy priority in the case of invalid acts of property,which in the logic of interpretation into a contradictory dilemma,while the legal interpretation also violates the legal principle of property and with China The legal interpretation is also at odds with our jurisprudence because it violates the legal principle of property rights.In view of the fact that the interpretation of the Supreme People’s Court fails to effectively solve the problem of the effectiveness of the sale type equity transfer guarantee,the author believes that the doctrine of the composition of ownership is more reasonable on the basis of the legal structure and re-examines the legal effectiveness of the sale type equity transfer guarantee under this interpretation.Therefore,this paper is a four-part detailed study of the effectiveness of buy-sell equity transfer guarantee.The first part starts from the current situation of the effectiveness of buy-sell equity transfer guarantee,first clarifies the conceptual characteristics of the current sale and purchase equity transfers and guarantees,then combats the contradictory situation of "like shares like debts",sorts out the types of judgment ideas that exist for determining the effectiveness of sale and purchase equity transfers and guarantees,and concludes that the composition of security rights is the current mainstream judgment rule.The conclusion is that the current rule of judgment is the mainstream.The second part analyzes the problems of the current mainstream interpretation logic of the validity of buy-sell equity transfer guarantee.Since the current interpretation path of the "Civil Code Security Interpretation" followed by the determination of the effectiveness of the sale and purchase type equity transfer guarantee adopts the theory of the composition of the security right,this paper,combining China’s traditional jurisprudence and the real situation,elaborates the defects of the current interpretation path from three aspects: contract validity,exercise and realization of the equity guarantee,and external relations,and concludes that The solution to the problem of legal validity must ultimately start from the legal structure.The third part is problem-oriented and traces the legal structure behind the effectiveness issue,showing the serious logical self-inflicted problems of the composition of security rights from both the jurisprudential theory and the security theory of commercial transactions,as well as the rationality and necessity of adopting the ownership composition theory as the legal structure of the sale and purchase type of equity transfer of security.The fourth part is based on the discussion in the above chapters and elaborates on the issue of determining the effectiveness of buy-sell equity transfer guarantee under the path of interpretation of the ownership composition theory.This part provides opinions and recommendations on the effectiveness of the transfer in rem,the exercise of equity and the effect of the act of realization of the security right,etc.It argues that the transfer in rem of the equity transfer should be effective;in the exercise of the equity and the realization of the equity security,the transferee as the actual shareholder,enjoys the real equity;in the effect of the liability for defective contribution,the security right holder should assume the liability for defective contribution.