股权让与担保的效力问题研究

Study on the Validity of Equity Transfer Guarantee

股权让与担保在实践中广泛运用,现已成为重要非典型担保方式,是中小企业融资的主要手段之一。因为现行立法对其没有明确规定,司法实践中出现了标准不一、同案不同判的问题。在股权让与担保中,应当承认转让合同的效力,债权人与债务人真实的合意应当被解释为债权人取得股权的优先受偿权,成为名义股东,而债务人仍是股权实际所有人。当债务到期未能清偿时,受“禁止流质”限制,需要引入清算条款。当外部第三人因信赖变更后的工商登记而与公司或名义股东发生交易行为时,就会设计股权让与担保的对内效力和对外效力的问题,对此将进行深入探讨。

Because of its wide application in practice,equity transfer guarantee has become an important non typical way of guarantee and one of the main means of financing for small and medium-sized enterprises.Due to the current legislation does not clearly stipulate it,there are different standards and different judgments in judicial practice.In the equity transfer guarantee,the validity of the contract of transfer should be recognized.The real agreement between the creditor and the debtor should be interpreted as the creditor’s priority to be paid for the equity and become the nominal shareholder,while the debtor is still the actual owner of the equity.When the debt is not paid off when it is due,it needs to introduce a liquidation clause due to the restriction of“prohibited fluidity”.When the external third party deals with the company or the nominal shareholder due to the industrial and commercial registration after the trust change,it will design the internal and external effectiveness of the equity transfer guarantee,which will be further discussed in this paper.