股权让与担保的实行及效力研究——基于裁判和学说的分析与展开

Research on the Excercise and Effectiveness of Equity Transfer Guarantee——Analysis and Improvement based on the Adjudication and Theory

股权让与担保的合法性已为司法实践接受,但关于其实行和效力的精细化研究尚待深入。就股权让与担保的实行而言,无论采何种实行方法,担保权人均应负有清算义务,并应以清算义务完成之时作为其因实行而取得股权的具体时点。股权让与担保的效力,应结合让与担保的基本法律构造和股权作为担保财产的特性,区分内、外部两类法律关系予以分析。内部效力上,应确认担保权人的名义股东地位,同时尊重当事人之间对股东权利行使和义务承担作出的合意安排。外部效力上,宜采担保权构造论的基本逻辑,并在设定人对外转让股权、设定二重担保,一般债权人强制执行股权或者标的公司破产等特别情形下,平衡设定人与担保权人、公司债权人和其他股东等相关者之间的利益。

The legality of equity transfer guarantee has been accepted in judicial practice,but the exercise and effectiveness of which are worthy of further study. In respect of the exercise of equity transfer guarantee,the secured party is liable for liquidation no matter which method of exercise is adopted,and should take the time when the liquidation obligation is completed as the specific time point when it acquires the equity. The effectiveness of equity transfer guarantee should be divided into internal and external levels,according to the legal structure of transfer guarantee and the characteristic of the shares as the collateral. on the internal effectiveness,the secured party should be confirmed as the nominal shareholder. In the meantime,we should respect the agreed arrangements between the parties regarding the exercise of shareholders’ rights and obligations. In terms of the external effectiveness,the basic logic of security right construction theory should be adopted. Under special circumstances such as the transfer of equity by the setter,the establishment of double guarantees,the compulsory exercise of equity by general creditors,or the bankruptcy of the target company,the interests of the setter and stakeholders such as secured parties,company creditors and other shareholders should be balanced.