Research On The Guaranteed Equity Repurchase

In recent years,with the development of economy in our country,a variety of innovative financing guarantee methods have come into being as the times require.As a typical example,the guaranteed equity repurchase has been widely used in practice.It means that the borrower transfers the equity to the lender for some money,and it is mutually agreed that he has the right or obligation to repurchase the equity at a certain price in the future.However,there are many disputes on finding of facts and application of statutory laws in this kind of dispute,which makes it difficult for the judicial organ to form a unified judicial decision and is not conducive to dispute resolution.Therefore,this paper analyzes the main problems faced in the guarantee equity repurchase in the judicial practice,so as to benefit the dispute resolution.The paper is composed of four parts,the details of which are summarized as follows:The introduction part mainly deals with the background,significance and methods of the research on the guaranteed equity repurchase.The first chapter is the judicial practice investigation of the guarantee equity repurchase.This part starts with three kinds of the guaranteed equity repurchase case,it can be seen from the analysis that how to correctly identify its legal nature and effectiveness is the main problem of such disputes,then comb on the current judicial practice of the guaranteed equity repurchase and summed up the main position of the judicial organ.The second chapter is the cognizance of the legal nature of the guaranteed equity repurchase.Through the analysis of specific factors such as transaction subject,transfer price and income arrangement,it is found that there is a loan relationship between the parties of the guaranteed equity repurchase,and the essence of the equitytransfer is the guarantee for the creditor's rights,so we cannot simply identify its nature.First of all,compare the guaranteed equity repurchase with equity pledge,the precontract of datio in solutum and the retention of title,it is clear that they are similar but not the same.Then,compare it with the alienation guarantee which more people advocated in the practice,and it is found that the guaranteed equity repurchase is not alienation guarantee either.Though the analysis,it can draw a preliminary conclusion that the nature of the guaranteed equity repurchase is a kind of repurchase.Finally,through the introduction and analysis of the general principles and constitutive elements of the repurchase system,it is found that the repurchase has the guarantee function,and the guaranteed equity repurchase accords with the basic characteristics of the repurchase,so it should be characterized as a kind of repurchase.The third chapter is an analysis of the validity of the guaranteed equity repurchase.On the basis of the definition of the guaranteed equity repurchase,the key to the validity analysis of the guaranteed equity repurchase is the validity of the guaranteed equity repurchase agreement.Through the analysis of conspires false representation theory,the prohibition of the fluidity clause theory and property statutory principle in this part,it concludes that the guaranteed equity repurchase agreement is valid,which is the real intention of the parties and does not conflict with these theories and principles.In terms of internal validity,since the equity transferor only retains the right of repurchase in the agreement,the rights and obligations between the parties are not different from the normal transfer of equity.Therefore,this paper mainly discusses the payment obligation of the transferor,the return obligation of the transferee and the way of the repurchase.In terms of external validity,taking into account the external form of equity transfer and the economic purpose of guarantee of the guaranteed equity repurchase,this paper focuses on the analysis of following four aspects: the transferee's disposition of the subject equity,the transferor's disposition of the subject equity,the relationship between the transferee and the other creditors of the transferor and the relationship between the transferor and the creditors of the transferee.