Research On The Effectiveness Of Equity Transfer Guarantee From The Perspective Of The Civil Code

Equity transfer guarantee have been popular and widely used by merchants in China.The validity of the transfer guarantee and the creditor’s priority right to be paid are determined in the "9th conference minutes",but the transfer guarantee still lacks provisions in the Civil Code,and there is only one provision in the"Interpretation of the Civil Code Guarantee" that exempts the creditor as the nominal shareholder from the responsibility of making up the capital contribution,which seems that the transfer guarantee is still in the "bastard child of the civil law".This is not the case.The Civil Code introduces the concept of the Functionalism,which is combined with the Formalism in China to form the eclecticism’s legislative model,easing the type of legalization of security rights,and there is no difference between the effectiveness of the registered alienation guarantee and the effectiveness of the security right expressly provided by law.However,based on the existing normative documents it is not possible to form a perfect system of effectiveness of the alienation guarantee,and because of the dual properties of equity as property,it makes the problems encountered in practice of the equity alienation guarantee more complicated and difficult to solve.Under the situation that the Civil Code has just been promulgated and implemented,it is more feasible to interpret the existing law to solve the problems existing in practice than to make amendments to the Civil Code.This paper tries to improve the effectiveness system of equity transfer guarantee by determining the legal composition of equity transfer guarantee.First of all,by sorting out the normative documents of China in recent years about the transfer guarantee and equity transfer guarantee,this paper finds that there is a lack of institutional arrangement to regulate the equity transfer guarantee and a lack of attention to the value of the equity transfer guarantee at the legislative level in China.Through the empirical analysis of the Supreme Court cases in recent years,it is found that the focus of disputes in equity transfer guarantee cases in China involves the conflict between multiple subjects,and there are judges’ trial views swinging between different theoretical systems,and no stable legal construction theory has been formed.Subsequently,this paper collates and analyzes the views of legal construction related theories and concludes that the most suitable legal construction for the equity transfer guarantee in China is the constitution of security right.Then,based on the relevant provisions of the Civil Code,the paper analyzes and concludes that the legislative model behind the Civil Code,the prohibition of the flow guarantee system and the provisions exempting the creditor of the equity transfer guarantee from the responsibility of making up the capital contribution are consistent with the theory of the constitution of security right.Finally,this paper studies the relationship based on the constitutive theory of security rights from three perspectives:first,the relationship between creditors and debtors,which mainly solves the problems related to the realization of creditors’ priority of compensation,and it is believed that the equity transfer guarantee produces the effect of security right by public notice,and the uniform priority subordination rule of Article 414 of the Civil Code can be applied to solve the problem of duplicate guarantee;second,the relationship between creditors and companies and other shareholders,which mainly solves the problem of whether creditors are entitled to exercise shareholders’rights in accordance with the contract,and believes that the creditor has the right to exercise the shareholders’ rights in accordance with the contract with the knowledge and consent of the company and other shareholders;third,the relationship between right holders and external third parties,which mainly solves the problem of conflict with the rights of external third parties arising from the equity transfer guarantee,and believes that the external effect should be resolved with caution against the abuse of the appearance doctrine,following the principle of fairness and resolving the conflict of rights in a practical manner.It attempts to solve the problems of equity transfer guarantee encountered in practice and provides useful references for judicial decisions.