Confirmation Of The Effect Of Equity Transfer And Guarantee Of China Limited Liability Company Problem Research

Equity transfer guarantee is a new type of financing guarantee model that has been continuously developed with the prosperity of the market economy.It is a way for debtors or third parties to transfer their own stock rights to creditors to protect the creditor's rights and buy back after the debtor has paid off debts.With the guarantee method,it has outstanding advantages in saving transaction costs,expanding the scale of financing,and guaranteeing debt repayment.Although equity transfer guarantees are widely used in practice,there are problems in the determination of effectiveness in the same case where the judgment results differ between different trial levels and different courts.That is,both valid and invalid judgments exist simultaneously.It is difficult to achieve a balance of interests between the security right holder and the guarantor,the company,and the third party in the process of effectiveness determination.In response to the above issues,this paper focuses on the study of the issue of the determination of equity transfer guarantees in China's limited liability companies and is divided into five parts:The first part is an empirical analysis of the determination of the effectiveness of equity transfer of limited liability companies in China.First of all,the concept and characteristics of equity transfer guarantees are defined,and this type of security method is differentiated from related systems to clarify the system of equity transfer and guarantee and equity pledge,equity transfer,etc.in the transfer of rights,distribution of rights and obligations,guarantees Differences in methods,etc.,then sort out the results of the determination of the effectiveness of equity transfer guarantees,and clarify the current status of effectiveness verification through the court's position in the judgment and the listing of invalid cases and effective recognition of typical cases.Based on this,it is pointed out that there are contradictions between the different judgments and the applicable basis of the same case and that the interests of the security right holder and the guarantor,the company and the third party are difficult to achieve an effective balance..The second part is the analysis of the reasons for the existence of the confirmation of share transfer guarantee effectiveness.First of all,the academic community is unclear on the nature of equity transfer guarantees.It fluctuates between the ownership theory,the theory of security property rights,the hidden behavior theory and the hypocrisy.The lack of publicity elements and the lack of liquidation procedures are the transfer of equity guarantees.The most important reason for invalidation.The second is to ignore the property rights of the security object “equity” and treat it as an ordinary property right.Unilaterally recognizing the effectiveness of the equity transfer guarantee will result in the improper use of the security method,so that the uncertain object can enter the company.Breaking the company's human nature and closure.In addition,the lack of follow-up on the part of the law makes the court lack a unified judgment standard at the time of trial.The limited scope of application of Article 24 of the Judicial Interpretation of Private Lending also makes this clause unable to match the particularity of equity transfer guarantee.The third part is the consideration of the factors that determine the effectiveness of equity transfer.First of all,it should be clear that the principals involved in the legal relationship of equity transfer guarantees include not only the parties in the secured legal relationship,but also the companies and other shareholders.In exceptional circumstances,even including goodwill third parties and other creditors of the company,The distribution of obligations must take into account the organization of the company.The second is to clarify the statutory principle of real rights,overcome the prohibition of imprisonment clauses and other obstacles and clarify that the share transfer guarantees are one of the security real rights.In considering the relationship of interests between different subjects,attention should be paid to the coordination of value concepts such as freedom,efficiency,and fairness.When the equity transferor conflicts with the company's overall interest,it should focus on protecting the interests of the company in order to achieve its goal of sustainable development.However,it should also adhere to reasonable limits in protecting the overall interests of the company and must not abuse the organizational characteristics of the company.The fourth part is the specific determination of the effectiveness of equity transfer security between different entities.The first is between the parties,that is,between the security guarantor and the security right holder.The principle that the principal and the special recognition are complementary;secondly,when the creditor conflicts with the interests of the company and other shareholders,priority should be given to protecting the interests of the company and other shareholders.In this legal relationship,the specific time node is distinguished and the initial time is set.During the process and at the time when the creditor's rights are repaid,the judgment is based on the determination of the validity of the equity;the last is the validity determination when other third parties are involved,and the third party should use the good faith acquisition system under certain conditions.The creditors distinguish between the interests of the security right holders during the existence of the target company and at the time of insolvency.The fifth part is the perfect proposal for the confirmation of the effectiveness of equity transfer.After analyzing the disputes that make the guarantees cultural and non-cultural,it is recommended to regulate the transfer guarantee system in China's “Civil Code and Property Rights” and to make reasonable provisions on the guarantee system of share transfer guarantees.Sexual arrangement.In response to the problems in the judicial trial at the current stage,it is suggested that interest measurement should be used as a guiding ideology to respect the economic nature of the security method.In the absence of legislation at the current stage,the use of typical public cases and the development of court documents should be used to transfer equity.The effectiveness of the guarantee is confirmed and the specific operational procedures are subject to the necessary specifications.