On The Exercise Of Equity Power In Equity Transfer Guarantee

Equity transfer guarantee is a kind of transfer guarantee with equity as the subject matter,which is widely used in social practice.As the product of the combination of the traditional transfer guarantee system and the company’s shareholding system,the particularity of equity,especially the special form and method of the possession and utilization of the subject matter,makes the transfer of equity guarantee show its own unique attributes.Perhaps because of this,it determines the broad development space of the equity transfer guarantee system.On the basis of examining historical experience and comparative system differences,this article bases itself on judicial practice,takes business logic and the laws of commercial transactions as the starting point,demonstrates the basis and boundaries of the exercise of equity rights in equity transfer guarantees,and conducts more refined research issues with the exercise of equity rights.This paper is mainly divided into five parts.The first part is the question posing.First of all,by examining the rise and development of the traditional property transfer guarantee,and comparing the system differences between chattel pledge and equity pledge,it shows that the reason for the rise of equity transfer guarantee is not to meet the needs of non-possession guarantee.Then,starting from the business logic and the rules of commercial transactions,it points out that the main reason for the rise of equity transfer guarantee is its strong guarantee function,which is mainly reflected in the fact that the secured party can exercise the equity power.Finally,sort out our country’s current judicial views on equity transfer guarantee,and determine the core topic of this paper is the exercise of equity by the secured party in equity transfer guarantee.The second part is the type analysis of equity power in equity transfer guarantee.First of all,by searching and examining sample cases,four situations in which the parties agree on the exercise of equity rights in practice are summarized: the agreement that the equity rights are fully exercised by the secured party,partial exercise,non-exercise,and no agreement.Secondly,it summarizes the court’s attitude towards the effectiveness of the secured party’s exercise of equity power under different circumstances.When the parties agree that the secured party may exercise all or part of the equity rights,the court generally does not pay attention to the content of the agreement and does not support the effectiveness of the secured party’s exercise of equity.The court only respects the party’s autonomy in individual cases,and supports the effectiveness of the secured party’s exercise of equity rights as agreed.When the parties have no special agreement on exercising equity rights or agree that the secured party cannot exercise the rights,the court generally does not pay attention to the content of the agreement and directly determines that the secured party’s exercise of equity rights is invalid.However,in individual cases,the court supported the effectiveness of the guarantee party’s exercise of equity on the grounds that the target company did not know the facts of the equity transfer guarantee.The third part is the basis of the right to exercise the equity right in the equity transfer guarantee.Citing the different views of scholars on the scope and effectiveness of the secured party’s exercise of equity functions,this paper argues that the right basis for exercising equity functions should be analyzed from two aspects: autonomy of will and company recognition.In terms of autonomy of will,first of all,by analyzing the commercial intention of the party to transfer the equity,it is clarified that the commercial judgment and rights disposal of the party’s free will are valid in principle.Secondly,by analyzing the characteristics such as the instability of equity value,it is clarified that the exercise of equity power by the guaranteed party is a commercial choice based on the balance of interests of the parties,and the purpose is to preserve the equity value.Finally,through the analysis of the effective scope of the equity pledge,it is clarified that the autonomy of will is the institutional advantage of the equity transfer guarantee,which can better meet the needs of the secured party to participate in the company’s operation and management to control risks.In terms of company recognition,according to whether the parties disclose the facts of the equity transfer guarantee to the company,discuss the effective scope of the autonomy of the parties in the company law field according to the situation,and clarify the company’s selection criteria for the subject of power exercise in the program operation according to different situations,to make a good connection between the legal principle for the guaranteed party to exercise the equity power autonomously with the company law.The fourth part is the boundary of exercising the power of equity in equity transfer guarantee.Firstly,by analyzing the disadvantages of the secured party’s exercise of equity rights,it clarifies the reasons why the secured party needs to be restricted in exercising the equity rights.On the one hand,the dominant position of the creditor at the establishment of the equity transfer guarantee may lead to too strict agreements on the exercise of equity rights.On the other hand,under the unique legal structure of equity transfer guarantee,it is easy to induce the guaranteed party to abuse his rights.Then,by analyzing the necessary restrictions on autonomy of will,the principle of public order and good customs should be introduced.Clarify the relationship between the principle of public order and good customs and the "guarantee purpose" of equity transfer guarantee,and delineate the limit for the guaranteed party to exercise equity power appropriately.Drawing on Germany’s "bondage" contract theory,it provides a value measurement standard for judging whether the guaranteed party’s exercise of equity rights exceeds the "guarantee purpose".Finally,the identification mechanism of the "bondage" contract is analyzed around the specific types of equity power.It clarifies that the common-profit rights should be mainly concerned in the determination of the "bondage" contract,and takes the voting right and the right to know as examples for specific analysis.Suggestions on how to deal with the "bondage" contract are given around the start of the procedure and the evaluation of the legal effect.The fifth part is the conclusion,summarizing the above research.