Research On Legal Issues Of Equity Transfer And Guarantee

As an atypical guarantee,equity transfer guarantee has the characteristics of high privacy,low guarantee cost and high flexibility.Perfecting the equity transfer guarantee system will greatly solve the difficulties existing in the market financing of emerging companies.Although Article 71 of the Minutes of the National Court’s Civil and Commercial Trial Work Conference issued by the Supreme People’s Court in 2019 and Article 68 of the Interpretation of the Supreme People’s Court on the Application of the Relevant Guarantee System to the Civil Code of the People’s Republic of China recognized the validity of the assignment guarantee contract,equity rights are more complex in nature than ordinary chattel real rights.Due to the dual nature of property right and identity right,there are still some problems to be solved in the equity transfer guarantee of limited liability company.Based on this,this paper mainly analyzes and expounds three aspects: The first is the legal status of the guarantee right holder in the guarantee of equity transfer,for which there are mainly two theories: creditor theory and shareholder qualification theory.This paper agrees with the shareholder qualification theory and holds that the theoretical basis of shareholder qualification theory lies in the ownership structure theory,and elaborates the internal and external effectiveness of the legal status of the guarantee right holder under the shareholder qualification theory.It holds that when there is a right transfer agreement,The security holder shall enjoy the corresponding shareholder rights in accordance with the scope of the Agreement;In the absence of a rights assignment agreement,if the Company and other shareholders are aware of it,they shall not enjoy the rights of shareholders,and if the Company and other shareholders are not aware of it,they shall enjoy all the rights of shareholders.The second is the guarantee mechanism of the right holder in the equity transfer guarantee.In this regard,this paper analyzes the guarantee mechanism of the right holder under the three situations of insufficient capital contribution of the guarantor,compulsory execution of the equity and disposal of the equity transfer.It believes that when the guarantor is insufficient in capital contribution,whether the capital contribution period expires should be considered.If the investment period is not expired,the guarantee right holder need not undertake corresponding obligations.It is believed that when the equity is applied for compulsory execution,it can be divided into three situations through the subject of application.If the creditors of the company apply for compulsory execution,it can adopt the principle of eliminating the company’s property to deal with it.If the creditor of the guarantor applies for enforcement,the guarantor can defend against the action of execution objection to prevent the equity from being executed and protect the rights and interests of the guarantor.If the creditor of the guarantor applies for enforcement,the new transferee of the equity needs to recognize the existence of the equity transfer guarantee,so as to protect the rights and interests of the guarantor.It is believed that when the equity is disposed of and transferred,whether the guarantor has the right to dispose of the equity should be authorized and ratified by the guarantor,but the trust interest of the bona fide third party is worth protecting.The third is the realization mechanism of security right in equity transfer guarantee.In this regard,this paper analyzes the real right effect of equity transfer guarantee,the choice of vesting liquidation and disposition liquidation mode in equity transfer guarantee,and the time recognition rules of ownership transfer in equity transfer guarantee.When solving the real right effect of equity transfer and guarantee,it is believed that under the framework of ownership constitution interpretation,the owner of security right,as the owner,certainly has the real right effect and has the priority to receive compensation.If the target company is a limited liability company,it should adopt the belonging-type liquidation.If the target company is a company limited by shares,it should be liquidated by disposition.In solving the problem of equity ownership transfer,it is believed that the time point of ownership transfer is different under the ownership constitution theory or the security right constitution theory.Under the framework of ownership constitution theory,the ownership transfer occurs when the equity transfer guarantee is established,that is,when the equity change registration is completed.