Research On The Protection Of The Rights Of Guarantors Of Equity Transfer

In an economic market where efficiency is prioritized,compared with general pledge guarantees,equity transfer guarantees have self-evident advantages in terms of risk control capabilities and flexibility in capital turnover,and are more in line with the financing practices of small and medium-sized enterprises.Therefore,more market players tend to Choose this form of guarantee.If the rights of the parties are not protected in the application of the law,or even if the rights are restricted,the system will naturally fall into "struggling" in its application.As a new type of security model,the legal nature of the equity cession guarantee has been controversial in academic circles and judicial practice,and it is not known whether the legal effect caused by it is the transfer of ownership or the effectiveness of the security right.The fact that China has not yet established a complete system of equity transfer guarantee also makes it difficult to form a uniform standard of application in judicial practice.In addition,equity,as a special type of composite collateral,has both property and personal characteristics.Once the guaranteed equity is dealt with,the interests of multiple parties are bound to be involved,not only the parties involved,but also the target company,the shareholders of the company and other creditors of the guarantor.In this context,the determination of the identity of the shareholder of the security interest and the exercise of its rights becomes a "difficult" issue.In response to a series of problems,the thesis clarifies the legal status of the security right holder and the attributes of the rights it enjoys in the connotation of equity cession security from a theoretical perspective.The two most controversial academic theories are compared and analyzed,and it is found that the adoption of the security right constitution theory is more suitable for the development of China’s judicial practice,which can better balance the interests between subjects and protect the special property rights like equity.At the same time,a theoretical analysis is conducted with other similar systems such as equity transfer,equity escrow and equity pledge to clarify the characteristics of the equity transfer security system and to deepen the understanding of its theoretical basis.We collect normative legal documents related to the content of the security right holder’s rights,and reflect on the logic of adjudication through the lens of specific cases,and focus on how the rights of the security right holder of an equity transfer can be more effectively protected.Firstly,in the dual legal relationship of the security right holder,the model with the principle of the security right holder and the exception of the security right holder is chosen as the standard for the qualification of the shareholder,fully respecting the autonomy of the parties and coordinating the conflicting interests of the parties;secondly,granting the security right holder certain shareholder rights and improving the exercise of the priority right to be paid to broaden the scope of its rights;finally,adhering to the value orientation of balancing internal and external interests.Finally,by unifying the mode of industrial and commercial registration and establishing a reasonable vesting and disposal method to ease the conflict of rights between security right holders and third parties,we strive to improve the normative system of equity transfer and security right holders’ rights protection,seek a broader legal application space,continuously explore the great potential of the equity transfer and security system,and enhance the inherent vitality of China’s economic market.