The Creditor’s Shareholder Rights Structure In The Equity Transfer Guarantee

With the increasing popularity of equity transfer guarantees, a large number of equity transfer guarantee disputes have also appeared in practice.As mycountry’s legislation has not established a systemic system for equity transfer guarantees, andjudicial judgments lack unifonm judgment standards,the current judgments in suchcases rely to a large extent on the exercise of the judge ’s dliscretionary power.However, many issues in the equity transfer guarantee disputes have not beenclarified, such as the ownership of equity, the internal and external effects of equitytransfer guarantees, and the realization of guarantees. The purpose of this article is to provide a reference path for the exercise of the judge’s discretion,so as to guice the judicial practice of equity transfer guarantee.This article will explain the logical relationship of legal reasoning in the adjudication uncler the framework of our country’s current law, in order to pursue the dual harmony of legal theoryand fact of the judgment result.First of all based on a number of equity transfer guarantee cases from 2014 to2018 the thesis summarizes the macro characteristics in the practice of equity tansfer guarantee:the number of cases obviously has a trend of scale and affirmation of effectiveness.And further determine the focus of disputes in adjudication disputes: the qualitative issue of legal relations and the confirmation of ownership of equity .Then, through the perspective of specificcases, reflect on the logic of the judgment and its existing problems: the cout generallydenies the creditor’s shareholder status,and on this basis assigns specific rights and obligations. Although this kind of thinking ensures that the guarantee essence of the equity transfer guarantee is highlighted.However,there are logical paradoxes that are difficult to dissolve behind this judging mentality.After raising the question,the thesis then entered into the analysis of norms and theory:combing the upper concept of equity transfer guarantee-the basic theory of transfer guarantee,and affirmed the effectiveness of the transfer guarantee through the following three aspects:The transfer guarantee did not violate the legal principles of property rights,did not form a false intention of conspiracy,and did not violate the provisions on the prohibition of liquidity.At the same time,it is pointed out that equity transfer guarantee is different from similar systems such as equity transfer,equity pledge and equity repurchase.On this basis,the three maj or characteristics of the equity transfer guarantee are further summarized:the existence of the equity transfer guarantee must be premised on the existence of a valid principal creditor’ s right,a very clear registration mark in appearance,and the transfer of equity ownership,but the creditor Does not necessarily own equity.Then,the author tried to explore the reasons for the chaotic logic in judicial practice judgments,and summarized three reasons:the difficulty of the balance of interests,the lack and ambiguity of legislation,and the neglect of the characteristics of the equity as the subject matter.On this basis,the author proposes to solve the problem through the comprehensive application of the existing civil law and commercial law.Following the above thinking,the author first confirmed that the underlying equity belongs to the creditor,because the complete equity transfer link enables the creditor to obtain the equity.This conclusion is also a reflection of the principle of respect for the autonomy of will and the principle of the commercial subject’s own risk.From this,it is concluded that creditors should enjoy shareholder rights.However,the creditor’s shareholder rights are restricted by many parties: the parties’ contractual agreement and the limitation of the guarantee purpose are govened by the"Company Law",and cannot violate the principles of fairness, good faith and civil rights in the Civil Code.Finally it briefly introduces how to avoid the risks in the equity transfer guarantee by restricting the shareholder rights of creditors.