Research On The Effect Of Liquidity Clause In Equity Assignment Guarantee

As a kind of atypical security real right developed from practice,equity transfer guarantee guarantees creditor’s rights in the form of transfer of equity ownership.Equity transfer guarantees continue to develop in our country due to the characteristics of transfer of ownership,but at the same time,it is also controversial because of the characteristics developed from practice and the lack of relevant legal regulations to regulate it.However,with the publication of the "Minutes of the National Courts’ Civil and Commercial Trial Work Conference"(hereinafter referred to as the "Minutes of the Nine Peoples"),the Supreme People’s Court has shown its clear judicial attitude and affirmed its effectiveness.However,the validity of the liquidity clause was still denied on the grounds that it violated the law’s prohibition on liquidity.The current judicial practice and the mainstream view in the academic circles are that the parties agree that the liquidity clause that the equity is directly owned by the creditor is invalid if the creditor’s rights are not repaid.In today’s highly developed market economy,equity transfer guarantee is a financing method.The liquidity clause agreement made by both parties is based on their own business judgments and focuses on efficiency.The liquidity clause agreement between the parties is conducive to the rapid realization of the guaranty.Power,in line with the efficiency pursuit of both parties.The main organizational structure of this paper is as follows:The first part is the presentation of the problem.This part takes a case as the starting point and leads to the issue of the validity of the so-called liquidity clause when the parties agree that the equity belongs to the creditor when the creditor’s rights expire but are not repaid in the equity transfer guarantee.The second part is the status quo of justice and academic arguments.First,combine the retrieved judicial cases to do a statistical and brief analysis of cases involving liquidity clauses in equity transfer guarantees in current judicial practice,and summarize the views and attitudes in current judicial practice;Make a summary and generalization of the validity of the clauses.The third part is the valid proof of the liquidity clause in the equity transfer guarantee,which is also the focus of this article.This part adopts the pros and cons,general to special ideas to justify the validity of the liquidity clause in the equity transfer guarantee.On the one hand,the reasons for negating the validity of liquidity clauses in typical security real rights,which are also traditional judicial and academic mainstream views,are refuted in the case of equity transfer guarantees.It is stated that these reasons for prohibiting liquidity clauses are no longer tenable in typical security real rights.This is not to mention that the legal structure in the equity transfer guarantee is different from the atypical security real right of the typical security real right;on the other hand,the validity of the liquidity clause in the equity transfer guarantee is carried out from the perspective of legitimacy.Justification still follows the general to special argumentation logic.This content uses the recognition of the validity of commercial liquidity in extraterritorial law to illustrate that there are major prerequisites for the validity of liquidity claims in equity transfer guarantees that belong to the same commercial field.,It is possible.Then,from the respect of the autonomy of the commercial subject and the characteristics of the equity transfer guarantee,it should not be compared with the liquidity treatment in the typical guarantee.Due to the large change in the value of the equity,the position of both parties does not exist.It can avoid the difficulty of realizing equity.To demonstrate in detail the reasons for the validity of the liquidity clause,and explain the equity transfer guarantee as a kind of transfer guarantee,because the equity has a particularity different from the general guarantee subject matter,to demonstrate the effectiveness of the liquidity clause in the equity transfer guarantee is not only reasonable but also justified.The fourth part is the purpose of narrowing the interpretation path.This section aims to explain the effectiveness of the liquidity clause in the equity transfer guarantee based on the purpose of Article 71 in the Jiumin Minutes.