Research On The Rights Of Assignee In Equity Cession Guarantees

As a new type of guarantee method chosen by commercial entities,equity transfer guarantee meets the financing needs of commercial entities while improving the efficiency of financing.However,equity transfer guarantee is not a typical secured property right in China,and there are many challenges in its implementation.The "Judicial Interpretation of the Guarantee System" only applies the guarantee rules to bind both parties,which impacts the provisions on equity transfer in the "Company Law",causing disputes in academic theories and confusion in judicial practice.It is urgent to clarify the legal relationship of equity transfer guarantee,distinguish the applicable laws in equity transfer guarantee,and measure the interests of multiple parties within the scope of legal provisions to ensure substantive fairness.The dispute points of equity transfer guarantee cases mainly focus on the shareholder identity of the assignee and whether the assignee can exercise shareholder rights.Based on the analysis of dispute points in equity transfer guarantee cases in recent years,the judicial status of equity transfer guarantee is clarified and the main problems in practice are identified.The legal application of the assignee’s exercise of shareholder rights is determined,and the equity transfer guarantee is recognized as an "absolute transfer of ownership" in theory.Under this theory,according to the "Company Law",the assignee is the actual shareholder in the legal sense of the company.The company’s internal shareholder register should be used to determine the assignee’s shareholder identity,while the industrial and commercial registration should be used to determine the assignee’s shareholder identity externally,to avoid excessive attention to the obligations of the third party.The assignee enjoys corresponding shareholder rights according to the Company Law,but in order to protect the personality of the limited company and the interests of the assignor,certain restrictions are imposed on the assignee’s enjoyment and exercise of equity rights based on the agreement between the parties and the purpose of the guarantee.According to the "Bankruptcy Law",the identity and rights and obligations of the assignee in the bankruptcy situation are determined.Regarding the realization of the assignee’s priority compensation rights,a single disposal-type liquidation is not sufficient to maintain the efficiency advantage of equity transfer guarantee.It is necessary to clarify the attribution-type liquidation process and assign the liquidation obligations to the assignee.