Research On The Recognition Of The External Effectiveness Of Equity Transfer Guarantee

As the socialist market economy in China continues to develop,the scale of civil and commercial transactions has rapidly expanded,and the demand for commercial financing has increased.To ensure the safety of financing transactions,equity transfer guarantees,as a non-typical guarantee method,have gradually emerged due to their convenience and high financing efficiency.Although the Supreme People’s Court has promulgated the "Minutes of the National Court Work Conference on Civil and Commercial Adjudication",which clarifies that equity transfer guarantees are a nontypical guarantee system and that the equity transfer guarantee agreement is not invalid due to the existence of some liquidity clauses,there is no clear answer to the issue of the effectiveness of equity transfer guarantees.In judicial practice,there is still considerable controversy over the recognition of the effectiveness of equity transfer guarantees.There are three types of disputes related to the recognition of the external effects of equity transfer and guarantee in judicial judgments,including disputes over the qualification and rights of shareholders in limited liability companies,disputes over the disposal of pledged equity by guarantors,and disputes over the execution of equity as subject matter by third parties.All three types of disputes have the characteristics of different judgments based on different claims,different judgments on similar cases,and different reasoning for similar cases.The problems that exist in the judicial judgment of the effectiveness of equity transfer guarantees mainly include: differences in the recognition of whether the guarantor has shareholder qualifications and shareholder rights,disputes over whether third-party transactions apply the good faith acquisition of equity,and inconsistent recognition of whether the creditor of the guarantor can execute the target equity.The reasons for the existence of the judgment problems of the effectiveness of equity transfer guarantees are that the legal attributes of equity transfer guarantees are still uncertain,the typological distinction of equity transfer guarantees is not clear,and the specific recognition criteria for the effectiveness of equity transfer guarantees are not specific.The recognition of the effectiveness of equity transfer guarantees for different types mainly includes three types.For the recognition of the guarantor’s shareholder qualifications and shareholder rights,it should be based on the principle of internal and external distinction.When there is an agreement,it should be based on the agreement.When there is no agreement,it should return to the essence of equity transfer guarantees and recognize that the guarantor is the true right holder of the target equity;for the recognition of whether third-party transactions apply to the good faith acquisition of equity,it should be strictly limited to the conditions of the positive statement,and the good faith acquisition system should be carefully applied.It should further examine whether the third party has fulfilled its reasonable duty of care,and whether it meets the other requirements of good faith acquisition based on the premise that the guarantor has no right to dispose of it,and has performed the relevant procedures for the transfer of equity in accordance with the "Company Law".The acquirer of the target equity can only be recognized as a good faith acquisition;for the recognition of the effectiveness of the creditor of the guarantor to execute the target equity,it should be distinguished according to the situation.When the guarantor passively protects its legitimate rights and interests and does not file an objection lawsuit against the outsider,the effect of the third party executing the equity under the name of the guarantor is valid.When actively exercising the right to sue to safeguard its legitimate rights and interests and claiming to be the true right holder,if the guarantor can prove that it is the true right holder of the target equity,the legitimate interests of the guarantor should be given priority.The theoretical basis for determining the external effectiveness of different types of equity transfer guarantees is different.Generally speaking,the determination of the external effectiveness of equity transfer and security is based on the special legal structure of equity transfer and the form of transfer of ownership of security and the purpose of realizing the secured claim.The theoretical basis for determining the shareholder qualifications and shareholders’ rights of the security holder lies in the autonomy of the parties within the scope of the basic principles and norms of the "Company Law";For the recognition of whether third-party transactions apply to the good faith acquisition of equity,the theoretical basis lies in the fact that the guarantor’s disposal behavior meets the conditions of no right of disposal,and the good faith acquisition rules are strictly and prudently applied.For the recognition of the effectiveness of the creditor of the guarantor to execute the target equity,the theoretical basis lies in the fact that the application of commercial externalism is limited to thirdparty transactions,but when the guarantor passively protects its legitimate rights and interests,it can be considered to break through this limitation to recognize the reliance interests obtained based on commercial externalism.In terms of clarifying the legal attributes of equity transfer guarantees,it is necessary to clarify the guarantee nature of equity transfer guarantees under the ownership transfer form,balance the relationship between the ownership transfer form and the guarantee substance;in terms of clarifying the typological distinction and recognition of equity transfer guarantees,it is necessary to clarify the type characteristics of equity transfer guarantees and buyout guarantees,and distinguish the recognition of equity transfer guarantees from buyout guarantees’ effectiveness;in terms of the specific standards for determining the external effectiveness of equity transfer guarantees,priority should be given to following the parties’ expressions of intent regarding the recognition of shareholder qualifications and their rights,cautiously applying the rules for acquiring rights in good faith,and recognizing the effectiveness of a third party’s shareholding in the transaction.The direct application of commercial formalism to the execution of shares by creditors of security rights should be excluded.