股权让与担保对外效力研究

Research on the External Effectiveness of Equity Transfer Guarantee

相比于股权质押,股权让与担保有其特殊价值:其对债权的保障力度更强且担保权的实现成本更低。根据现行法,股权让与担保在当事人内部有效,债权人享有优先受偿权且需履行清算义务,然而其外部效力则存在争议,相关制度也付诸阙如。在公司层面,股权让与担保的外部效力主要涉及股东经营管理权的行使主体问题。基于协调意思自治和尊重公司意志的原则,债权人与债务人就公司经营管理权限达成的合意对当事人产生效力,但仅在取得公司同意时才能对抗公司。在公司外部层面,公司债权人对股东信息不享有值得保护的信赖利益,故名义股东无须对其承担出资补足责任;名义股东的一般债权人也不享有足以对抗真实权利人的信赖利益,故其不能申请执行标的股权。

Compared with equity pledge,the protection strength for the creditor's right of equity transfer guarantee is stronger and the costs for the realization of security rights are lower,which is the special value of equity transfer guarantee.According to the current laws,the equity transfer guarantee is effective within the parties,and the creditor enjoys the right of priority in repayment and needs to perform the obligation of liquidation.But the external effectiveness of equity transfer guarantee is controversial and lacks relevant rules and regulations.At the company level,the external effectiveness of the equity transfer guarantee mainly involves the exercise subject of shareholders'management rights.Based on the principles of coordination of the party autonomy and respect for the company's will,the agreement between the creditor and the debtor on the allocation of the management authority over the company is effective between the parties,but it can't be effective against the company until the company's consent is obtained.In respect of the external relationship,the company's creditors cannot form a reasonable reliance worthy of protection on the shareholders'information,so the nominal shareholders do not have to assume the supplementary responsibility for their capital contribution;The general creditors of the nominal shareholders also do not enjoy the reliance interest sufficient to resist the real obligee,therefore,the creditors of the nominal shareholders cannot apply for the enforcement of the subject equity.