Research On The Legal Issues Of Equity Transfer Guarantee

Equity transfer and guarantee have gradually become an important way of financing,but at present,the legal supply of this system in China is insufficient.which cannot meet the needs of practice,and the phenomenon of different judgment of the same case also exists in the judicial judgment.Starting with practical cases,this paper summarizes the common contention points and divides them into three aspects:the effect of real right,internal effect and external effect of equity transfer and guarantee.The particularity of equity makes both the composition of ownership and the composition of guarantee right cannot be fully adapted to the equity transfer and guarantee.This paper believes that on the basis of the composition of the security right,the validity of the reasonable agreement between the parties should be recognized,and the relevant disputes should be studied on this basis.There are three aspects to question the validity of the real right of equity transfer and security,including the violation of the principle of legal real right,the false representation of the conspiracy,and the violation of the prohibition of liquidity.Artice 388 of the Civil Code adds "other contracts with guarantee function",which includes equity transfer and guarantee,alleviates the rigid legal property right principle in China,and provides strong support for the system to become the real right of security.The expression of intention made by both parties out of real effect is obviously different from the practice of hiding other legal acts with false meaning in the prohibition of law,and does not constitute a false expression of conspiracy.Nor will the system be void because of the fluid clause in the contract.The publicity method should refer to the publicity method of equity transfer,and should distinguish different subjects such as the party,the company and the third party.The internal effect of equity transfer and guarantee involves two issues,including how to exercise equity and how to realize equity.The shareholders’ rights in the equity concession and guarantee are mainly manifested as the self-benefit right and the co-benefit right.The difference between the two is whether the security right holder has the right to exercise the equity when the company and other shareholders know the fact of the equity assignment and guarantee but the parties do not agree on how to exercise the equity.The former may be exercised,while the latter is not entitled to it.If there is any dispute between the parties over the disposition method of equity,the disposition shall be conducted in the order of the liquidation type and then the disposal liquidation type.The external effect includes three issues,namely,the exercise of the preemptive right of other shareholders,the assumption of capital contribution responsibility and the effect of the external transfer of equity.From the perspective of the types of companies involved in the case,it mainly involves the limited liability companies with strong human compatibility,and the transfer of equity involves the exercise of the preemptive right of other shareholders.It shall be discussed according to whether the other shareholders know the facts of the guarantee.If other shareholders know the facts of the guarantee,they cannot exercise the preemptive right,but other shareholders can exercise the preemptive right when the debtor fails to dispose of the equity.If not,it is no different from the equity transfer,and the preemptive right can be exercised.Creditors need not bear the liability for defects of capital contribution,and the principle of appearance doctrine should not be applied to this issue.When the security right holder has no right to dispose of the equity,the third party may acquire the equity in good faith.The effect of the transfer of equity by the guarantor shall be handled according to the knowledge of the company and other shareholders.