论股权让与担保效力认定的 存在问题及完善

Abstract

Equity transfer guarantee is a new atypical financing guarantee model that hasbeen developing well in the private lending field without laws and conclusion of thetheoretical circle. When faced with relevant controversial issues, the judges avoided totalk about it or follow their hearts because there is no uniform standard of judgment. This leads to confusion in judicial practice, even the same court’s judges of theEquity transfer guarantee are different. Facing the varies judgments, it is essential todiscussing the legitimacy and rationality of the Equity transfer guarantee. Comparedthe Equity transfer guarantee with the relevant systems after studying the nature ofthe Equity transfer guarantee, we could learn the advantages of other systems andcombine with the Company’s characters which are harmonious among shareholders,closure and strict procedural to distinguish the internal and external effectiveness ofthe Equity transfer guarantee. After analyzing the problem of the Equity transferguarantee in application of law especially the Company law and the Bankruptcy law,We could reference The Principle of Legal Mitigation of Real Right to argument thelegitimacy of the Equity transfer guarantee and appeal the judicial person toenactment the relevant judicial interpretation, which could guide the development ofthe Equity transfer guarantee, balance the benefits of creditors and debtors andpromote sound and orderly economic development.