股权让与担保制度探析

Exploration of Equity Transfer and Guarantee System

摘要: 股权让与担保制度起源于罗马信托制度，随着我国市场经济的发展，股权让与担保形式逐渐多样化。自2019年《全国法院民商事审判工作会议纪要》首次承认股权让与担保的可适用性与有效性以来，相关研究逐渐增多。股权让与担保协议效力的争论主要涉及物权法定原则、禁止流质条款和虚伪的意思表示，通过对上述争议的逐一分析明确股权让与担保协议具有效力。股权让与担保制度在我国实施也面临问题，其中内部关系的问题包括债权人是否具备股东资格、是否具有股东权利与义务；外部关系中也存在着与第三人关系、股权让与担保权人所持股份与目标公司之间的关系及股权让与担保人是否需要负担瑕疵出资的责任的争论。可以通过强化股东名册对股东资格认定的效力、厘清股权让与担保权人的权利与义务来解决面临的内部问题；通过保护善意第三人、股权让与担保权人享有优先受偿权以及担保权人应承担瑕疵出资的责任来解决股权让与担保制度外部问题，由此完善我国股权让与担保制度。

Abstract: The equity cession and guarantee system originated from the Roman trust system, and with the development of China’s market economy, the form of equity cession and guarantee has gradually diversified. Since The Summaries of the National Conference for Work of Courts on the Trial of Civil and Commercial Cases first recognized the applicability and validity of equity cession and guarantee in 2019, the relevant studies have gradually increased. The debate on the validity of the equity cession and guarantee agreement mainly involves the principle of the legal right of property, the prohibition of the liquidity clause and the false representation of meaning, and it is clear that the equity cession and guarantee agreement have validity through the analysis of the above disputes one by one. The implementation of the equity transfer and guarantee system in China also faces problems, including the internal relationship of whether the creditor has the qualification of a shareholder and whether it has the rights and obligations of a shareholder; and the external relationship of the relationship with third parties, the relationship between the shares held by the equity transfer and guarantee right holder and the target company, and whether the equity transfer and guarantee holder needs to bear the responsibility of defective capital contribution. The internal problems faced can be solved by strengthening the effectiveness of the shareholders’ register in determining the qualifications of shareholders and clarifying the rights and obligations of equity transfer and security rights holders; the external problems of the equity transfer and security system can be solved through the protection of bona fide third parties, the right of the equity transfer and security rights holders to enjoy the right of priority of compensation, and the liability of the security rights holders for defective capital contribution to improve the equity transfer and security system in China.