The Legal Status And Responsibility Of The Secured Party In The Security Of Equity Transfer

Although the establishment of a company has changed from a paid-in system to a subscribed system,the company’s demand for capital has been increasing,and its demand for market capital absorption is also increasing.Under the market financing demand,a kind of compliance has emerged.The guarantee method demanded by the market-"assignment guarantee".In real life,equity transfer guarantees are more efficient in realizing creditor rights than traditional typical guarantees,so that more companies choose to use this form of guarantee.However,with regard to the nature of the rights enjoyed by the security right holder in the equity transfer guarantee,that is,whether it enjoys equity or security real rights,the current law does not clearly stipulate,which raises some questions worthy of discussion,such as whether the security right holder enjoys shareholder qualifications.Is it possible to exercise the corresponding rights according to the shareholder qualifications enjoyed,and whether it can require the security right holder to undertake shareholder obligations when facing a third party of the target company? For the above issues,the former relates to the legal status of the security right holder in the target company,and the latter relates to the legal liability of the security right holder.In addition to the property attributes of commodity exchange,equity also has certain membership rights attributes,which involve the target company,company shareholders,company creditors,etc.It is a competition for the interests of multiple parties.Under this background,the shareholders The problem of qualification determination is not a problem that can be solved simply.Furthermore,regardless of academic theory or practice,the specific legal effects of the establishment of equity transfer guarantees have always been at a stage of dispute,and a unified opinion has not yet been formed.Whether the transfer of equity transfer guarantees produces ownership or has guarantees The effectiveness of? There is no authoritative theory.In the absence of unified legislative guidance and divergent opinions,it is difficult to form a consistent judgment in judicial activities.In response to the above problems,this article analyzes the legal status and responsibilities of the security right holder in the target company from the perspective of theoretical exploration,and provides ideas for judicial practice departments to solve the problem.The article structure is divided into four chapters.The first chapter is "Overview of Equity Assignment Guarantee".To study the legal status and responsibilities of the security right holder in the equity assignment guarantee,the relevant basic theory of equity assignment guarantee is required as the research premise.This chapter discusses the conceptual features of equity transfer guarantees and related basic theories of transfer guarantees.The second chapter is "the issue of the legal status and liability of the security right holder in the equity transfer guarantee".This chapter first elaborates on the legal status and liability of the security right holder based on whether the ownership is transferred completely after the establishment of the equity transfer guarantee.The specific question is whether the guarantee holder’s shareholder qualifications can be determined,based on the former’s determination,whether it can exercise the corresponding shareholder rights;in the case of a defective equity transfer,does the transfer of the defective equity mean that it should bear Legal liability for defective capital contributions;disputes such as whether the security right holder’s use of company assets to realize his own creditor’s rights can be identified as the evasion of capital contributions and other controversial issues.Second,analyze the reasons for the dispute.By analyzing and clarifying the legal relationship of the abovementioned problems,the author puts forward suggestions to solve the abovementioned problems in chapters three and four.The third chapter is " The legal status of the security right holder and the solution to the exercise of the rights ".The author separates the enjoyment of the rights of the security right holder from the exercise of the rights.Using this as the research basis,we propose the basic research ideas of this chapter,and then study the legal status of the security right holder along this way,and confirm the qualification of the security right holder in the target company in the judicial practice of equity transfer guarantee Analyze the issue of the exercise of shareholder rights.In order to balance the interests of the third party and the security right holder,confirm the guarantee holder’s shareholder qualifications in the target company;under the condition that the company’s shareholders are all aware of the transfer guarantee,based on the human nature of the limited liability company and the corporate governance structure Stable considerations,restrict the security rights holders from exercising shareholder rights.The fourth chapter is "the handling of legal liabilities involving a third party".The "third party" referred to in this article is the creditor of the target company.Specifically,for the creditors of the target company,this chapter distinguishes two situations for discussion.First,discuss the issue of defective capital contribution.In view of the purpose of the equity transfer guarantee,the security right holder did not pay the consideration for the transferred equity,and the transferred equity has defective capital contribution.When the third party claims to the guarantee right holder that it shall bear the responsibility of the defective capital contribution,The author divides the rights and obligations of the security right holder by whether they form a reliance interest.If the equity transfer guarantee is established after the target company and the third party have transacted,the security right holder has not formed a reliance interest with the third party.The rights of the security right holder should be protected at the time.On the contrary,it protects the rights of third parties.Second,whether the security right holder’s actions to realize the creditor’s rights through the assets of the target company should be regarded as an escape question.The author believes that it is necessary to comprehensively judge whether the security right holder has violated the shareholder’s capital contribution obligation and reduce The company’s debt repayment ability and whether a third party outside the company has formed a commercial appearance trust in the security right holder as a shareholder of the company,and then judges the rights and obligations of the security right holder.