Qi Jingzhi Lawyer
Equity pledge is a right pledge, and according to the principle of one thing and one right, there cannot be two or more pledges with the same content on the same subject matter of at the same time . Lawyer Qi Jingzhi reminded that mortgage right can be repeatedly mortgaged, but pledge right , except for warehouse receipt pledge , which can be repeatedly pledged, rights pledges including equity pledges shall not be repeatedly pledged.
This article does not follow the simplest, and the analysis is as follows:
1, According to the principle of one object and one right, there cannot be two or more pledges with the same content on the same subject matter at the same time.
Referee Integration: According to the principle of one thing and one right, there cannot be two or more pledges with the same content on the same subject matter of at the same time.
The second instance is based on Yang Hongwei, the actual controller of Jindun Warehousing Company and the legal representative of Mingyuan Grain Trading Company. determines that Jindun Warehousing Company has the right to dispose of the pledged property involved in the case . According to the facts found in the second instance, on June 25, 2012, the Wushang Chuan Changchun Branch and Jindun Warehousing Company signed a "Leasing and Entrusted Warehousing Operation Agreement", and then Wushang Chuan Changchun Branch actually had the right to use the warehouses involved in the case . According to Yang Hongwei's confession in the criminal lawsuit, the lease contract between Mingyuan Grain Trade Company and Huinong Guarantee Company was re-signed after the loan was issued. Based on this, combined with the entrusted supervision relationship between the ICBC Baishan Branch and the Wushang Chuan Changchun Branch, as well as the personnel assigned by the Wushang Chuan Changchun Branch to actually possess the pledged property, which is enough to determine that the pledged property in the case has delivered to the creditor ICBC Baishan Branch, and there is no evidence to prove that the possession of the pledged property by ICBC Baishan Branch is not sustained. Therefore, it was determined that Yang Hongwei pledged the pledged property in the name of Jintun Warehousing Company to the ICBC Baishan Branch in the name of Mingyuan Grain Trading Company to Huinong Guarantee Company, which constitutes the repeated pledged in , and the facts are clear. According to the principle of one thing and one right, there cannot be two or more pledges of the same content on on the same subject matter, cannot be at the same time. The pledge right of the ICBC Baishan Branch was established first in accordance with the law, and the pledge property was exclusively occupied, so it was determined that the pledge right of Huinong Guarantee Company of the pledged property involved in the case was not established.
Case source: (2017) Supreme Court Min Ai No. 148.
2. The " Civil Code " only stipulates that the mortgage right can be repeatedly mortgaged, but does not stipulate that the pledge right can be repeatedly mortgaged.
" Civil Code of the People's Republic of China " Article 414 If the same property is mortgaged to more than two creditors , the price obtained from the auction or sale of the mortgaged property shall be paid in accordance with the following provisions:
(1) If the mortgage right has been registered, the order of repayment shall be determined according to the registration time;
(2) If the mortgage right has been registered before it is not registered, the payment shall be paid in accordance with the proportion of the debt.
Other security rights that can be registered shall be subject to the provisions of the preceding paragraph in the order of compensation.
33. In judicial practice, repeated pledges of equity cannot be handled.
Some local regulations clearly prohibit the re-publication of equity that has completed pledge registration.
1. For example, Article 3 of the "Interim Measures for the Pledge Registration of Companies in Shandong Province" stipulates: "If the equity used for pledge is in the following circumstances, no pledge registration shall be applied for: ... (V) Re-publication shall be made with equity that has already pledged." Article 4 of the "Interim Measures for the Pledge Registration of Companies in Jiangsu Province's Industrial and Commercial Administration Authority" stipulates: "If any of the following circumstances occurs, no pledge registration shall be made with equity registration shall be made. :... (III) Re-publication of equity that has been completed; "
2. Article 5, paragraph 1 of Tianjin's "Trial Measures for the Management of Company Equity Pledge Registration" stipulates: " pledgee shall apply for equity pledge registration with equity that can be transferred according to law. For equity that has been frozen by the people's court or has been completed for pledge registration, no further application for equity pledge registration shall be applied for equity pledge registration."
3. In addition, although some places have not issued regulations prohibiting repeated pledges of equity, the relevant registration authorities may prohibit repeated pledges of equity in their service guidelines on equity pledge. For example, in the "Shenzhen Market Supervision Administration" project displayed in the "Equity Pledge" project displayed in the "Acceptance Conditions" column, the "Pledged equity should be equity that can be transferred according to law, and its power is complete. Pledge has not been set up before and has not been frozen by the people's court in accordance with the law. "
4 and listed companies cannot apply for repeated pledges. According to the "Guidelines for Securities Pledge Business of Shenzhen Branch of China Securities Depository and Clearing Co., Ltd." (China Securities Depository and Clearing Co., Ltd. Shenzhen Branch" (China Securities Depository and Clearing Co., Ltd. No. 13) "2. Application materials and related matters" "Article 3) "For securities that have been frozen by judicially, have been repurchased and pledged, and have been submitted to securities companies or the company as collateral, they shall not apply for pledge registration again"; and Article 7 "There is no specific period for securities pledge registration. Once a securities are registered for pledge, pledge shall not be set up repeatedly before the pledge registration is lifted. ”
In summary, equity pledge cannot be handled for repeated pledges.
Qi Jingzhi lawyer, arbitrator, Peking University Law School Peking University Law School special lecturer, company equity, loan guarantee, real estate and land, contract disputes national professional lawyer
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