| In today’s economic development and the rapid change of social environment,folk lending market of our country present active state,in order to adapt to the development of The Times,can develop guarantee,but also the legislative guarantee problem after several twists and turns,and finally the law of the People’s Republic of China civil code has been officially included in the,but this does not affect the judicial practice guarantee disputes is increasing year by year.However,the equity transfer guarantee under the transfer guarantee includes both the characteristics of equity and the company,which makes the development and analysis of related problems more complex.Therefore,it is necessary to carry out a more in-depth study on the equity transfer guarantee.So this article with judicial practice case as the research object of the original,to discover problems,analyze problems,until the train of thought to solve the problem of equity issues related to guarantee an in-depth research,trying to take this to the relevant disputes in judicial practice,so that they can to solve the problem of the practice of equity guarantee have reference meaning.Based on judicial practice case study as the research object of the original,using the comparison method to compare the guarantee system of domestic and foreign equity transfer,the empirical study method research on equity in our country case,the standard method for guarantee of equity in our existing legal system to guarantee the applicable places,from different directions to guarantee to equity related question has carried on the comprehensive analysis,the full text includes six chapters.The first part is the introduction with general significance.This part mainly introduces the guarantee system of the selected topic background and significance of topics,the background of the selected topic to equity guarantee case disputes exist in the judicial practice,the issue of the referee in the practice viewpoint has certain differences,therefore the study of issues related to whether the need for both in theoretical and practical significance.After that,the author sorts out the views of domestic scholars on relevant issues and summarizes them to find out the focus of disputes in the theoretical circle,so as to determine that the core content of this study is mainly the realization of equity transfer and guarantee.The second part is the summary of equity transfer guarantee.This part first defines the concept of equity transfer guarantee,and expounds its four characteristics.The premise is that there is a debt relationship between the two parties of the guarantee contract,and the purpose of establishing guarantee is to realize the creditor’s right.It is an atypical form of guarantee to realize the transfer of equity ownership.After the equity transfer guarantees made comparison with related concepts,similar concepts include shares,equity generation and the transfer of equity pledge,all have in common with equity guarantee but there is still difference,through carries on the comparison to related concepts to a more thorough understanding of the concept and characters of the guarantee of equity,And sums up the role of equity transfer guarantee in judicial practice.The third part is the research on the current situation and existing problems of the dispute of equity transfer and guarantee.First on the present situation of the judicial practice of equity guarantee,then find and tidy sums up equity guarantee judicial case data and the data are briefly analyzed,found that the main problems of this kind of disputes in judicial practice including the stake to guarantee the effectiveness of the contract,whether the assignee has the different of shareholder status maintenance as well as to the ownership to the third party guarantee the effectiveness of the differences.The fourth part is to explore the relevant issues of equity transfer and guarantee contract effectiveness.In both the legislation and judicial practice,our country has to admit the validity of the guarantee,so first of all must guarantee contract effectiveness of equity briefly expounds the legal basis and theoretical basis,from the equity transfer after concrete determination of guaranty contract perspective,to study the effect of general requirements and special requirements,and the effective flaws of the equity transfer contract are discussed.The fifth part is the discussion of the validity scope of equity transfer guarantee.The validity of equity transfer guarantee is bounded by the subject of the parties and divided into internal and external validity.The internal validity is distinguished by two different subjects,namely,the validity to the security right,the creditor,and the validity to the debtor.The external effectiveness of equity transfer guarantee is also divided into two parts,one is the effectiveness of the company,the other is the effectiveness of the assignee’s creditors,so as to expand the discussion.The last part elaborates the realization path of equity transfer guarantee from the perspective of solving practical problems.Firstly,the judicial interpretation of the guarantee system in the Civil Code which can be applied to the guarantee of the transfer of stock rights is understood and then the liquidation of the guarantee of the transfer of stock rights is expounded.In addition,because of the complexity of the guarantee of equity,its existence is different from other guarantee way different special problems,so choose two effective guarantee of equity disputes in the social practice and worth deep discussing special problems for research,so as to solve in the clearing of the guarantee of equity when the preemptive right of shareholders,and the problems should be how to implement the creditor’s rights of the debtor bankrupt. |
