Research On The Internal Transfer Guarantee Of The Limited Liability Company

Today,with the rapid development of market economy,corporate guarantee has been made an important part of the enterprise’s market economic activities.It plays a major role in promoting the completion of the transaction and ensuring the realization of the creditor’s rights.In recent years,there are more and more disputes arising from the promise effect of the limited liability company.In our country,ownership concentration and corporate governance situation have not improved the environment of market economy,the guarantee may become large shareholders or controlling shareholders of company property or even withdrawing the tool,to the detriment of the company creditors and other shareholders.The new "company law" article sixteenth,for the company’s guarantee of regulation,but because the law does not violate the provisions of the legal consequences of the legal procedure after,resulting in the circles of theory and Practice for the law interpretation and application is very controversial,namely the "company law" to the end of sixteenth is applicable to identification of Co.the company responsible for the internal transfer of shares to guarantee the effectiveness of the.At the same time,the behavior of the guarantee as a special form of guarantee,not only there is a link between program elements and the "company law" Article 16 of the company’s external security,but also involves the guarantee whether constitutes the internal shareholders capital flight problem.In view of the above problems,this paper draws a conclusion that the author can solve the above problems by combining the specific cases.This paper starts with the analysis of typical cases by the Supreme People’s Court of the limited liability company to the shareholders of the company’s internal equity transfer guarantees the validity of the case,the first and second completely different judgments based on the analysis,and then leads to the two focus of this paper is to study and solve.First,a limited liability company in violation of the statutory procedures for the transfer of shares between the shareholders of the company to provide a guarantee for the validity of the contract is the "company law" provisions of Article 16? Second,a limited liability company in violation of the statutory procedures for internal equity transfer assure would constitute the "company law" provisions of Article 35 of the capital flight,resulting in security the contract is invalid? Based on the new "company law" Article 16 interpretation,comparative analysis of the guarantee contract applicable provisions of "company law" Article 16 from the normative nature and legislative purpose of the law angle,and the guarantee contract belongs to the relative invalid contract.At the same time,through the study of the entity problem of the internal transfer of shares by the limited liability company.The research combined with the typical behavior of Shareholders Withdrawing Capital definition,characteristics,elements and capital flight in practice,from the end of withdrawal of capital of subjective and objective two aspects,the limited liability company in the case does not constitute a guarantee for the internal transfer of shares capital flight.In the concluding part,the author puts forward his own opinion on the basis of the case.