Research On The Effectiveness Of Equity Transfer Guarantee

With the increasing innovation of commercial transaction structures,financing guarantee methods are becoming more and more complex.And non-traditional guarantee structures are becoming more common.The way to achieve the security purpose by letting the ownership of the object of the ferry is gradually known to the public.As a result,equity transfer guarantees came into being.After studying a large number of cases related to equity transfer guarantees,we found that most courts recognized the legal effect of equity transfer guarantees.And it is foreseeable that with the continuous development of the economy,more market entities will use the guarantee method of equity transfer guarantee to achieve the purpose of financing.As a result,there will be more disputes over equity transfer guarantees.However,at this stage,China’s law does not make clear provisions for this kind of guarantee,so that in judicial practice,the determination of the effect of equity transfer guarantees lacks a unified judgment.In this context,in order to increase the predictability of the referee and the uniform application of the law,this article will conduct an in-depth study of the effectiveness of equity transfer security.To ensure that equity transfer guarantees can be used in economic markets in an efficient and standardized manner.The main content of this article includes the following four parts:The first part is the definition and nature of the equity transfer guarantee.First of all,through the study of related theories and referee cases,the article summarizes the concept and characteristics of equity transfer security.Secondly,through a comparative study of equity transfer guarantees and similar behaviors,we can better understand the particularity of equity transfer guarantees.Finally,through a comparative study of the composition of ownership and the composition of security rights,and combining the behavioral characteristics of equity transfer security,it is determined that the nature of equity transfer security is consistent with the security property structure theory.The second part is the research on the contract effectiveness of the equity transfer guarantee.This article starts with the theoretical disputes over the validity of the equity transfer guarantee contract,and summarizes the current major theoretical disputes about contract effectiveness.And starting from the practical differences on the validity of contracts,two logical ideas about contract evaluation are stripped out.Finally,the validity of the equity transfer guarantee contract is demonstrated from three aspects:the legal principle of real rights,the expression of false intention,and the liquidity clause.The third part is the research on the internal effect of equity transfer guarantee.In this section,firstly,the validity of the creditors’ exercise of equity is studied in the two cases where the guarantor has an agreement and no agreement on the scope of equity exercise.Then,it discusses the necessity of the realization of the equity transfer security right.It also discusses and analyzes the realization of equity transfer security rights in three cases:agreed liquidation,agreed liquidity clauses,and unimplemented rights realization.The fourth part is the research on the external effect of equity transfer guarantee.In this section,the article first clarifies the legal relationship between the security owner and the external third party.It is demonstrated from four aspects that the guarantor is not the company’s founder,that the guarantor has fulfilled his duty of care,that the guarantor has not evaded capital,and that the guarantor is actually a creditor.Secondly,the article judges the legal status of the guarantor when the guarantor goes bankrupt.And draw the conclusion that the security holder will give priority to compensation for the price of the underlying equity based on the ex-rights.