Equity pledge process
First, the equity pledge process
1. Types of enterprises that can apply for equity pledge (limited liability companies and unlisted joint stock limited companies)
2. Fill in forms and other materials (fill in the Application Form for the Establishment of Equity Pledge, etc.). : Submit copies of licenses, pledge contracts, identification certificates of pledgees and pledgors and other documents and certificates. )
3. On-site material submission (bring all the submitted materials, and after the appointment is successful, pick up the number at the investment service hall at the acceptance time prompted by telephone. )
4. Receive the notice of equity pledge (receive the notice of equity pledge after acceptance). After your registration application materials are accepted, please follow the staff's tips to get the Notice of Equity Pledge at the registration window on the first floor of the investment service hall. )
Two. Documents and certificates shall be submitted for the registration of equity pledge.
(1) Documents and certificates to be submitted for the registration of establishment of equity pledge:
1. Application for Registration of Establishment of Equity Pledge signed or sealed by the applicant;
2. A copy of the register of shareholders of a limited liability company that records the name of the pledger and its capital contribution (the company's seal is required);
3. Pledge contract;
4. Copies of the pledgor and pledgee's subject qualification certificates or the identity certificates of natural persons (pledgor and pledgee shall be signed by themselves if they belong to natural persons, and shall be stamped with the official seal of the legal person if they belong to legal persons);
5. If the equity of a foreign investment limited company is pledged, the approval document of the examination and approval authority shall be submitted;
6. A copy of the business license of the company with the official seal of the pledged equity;
7. Certificate of designated representative or authorized agent.
(2) Documents and certificates to be submitted for the registration of change of equity pledge:
1. Application for registration of change of equity pledge signed or sealed by the applicant;
2, the relevant registered items change file:
(1) If the amount of pledged equity changes, it shall submit an amendment or supplementary contract to the pledge contract;
(2) If the name of the pledgor or pledgee or the name of the company where the pledged equity is located changes, the certificate of the name change and the changed subject qualification certificate or a copy of the identity certificate of the natural person shall be submitted (if it belongs to a natural person, it shall be signed by myself, and if it belongs to a legal person, it shall be stamped with the legal person's seal);
3. A copy of the business license of the company with the official seal of the pledged equity;
4. Certificate of designated representative or authorized agent.
(3) Documents and certificates to be submitted for the cancellation of registration of equity pledge:
1. Application for cancellation of registration of equity pledge signed or sealed by the applicant;
2. A copy of the business license of the company with the official seal of the pledged equity;
3. Certificate of designated representative or authorized agent.
(4) Documents and certificates to be submitted for the cancellation registration of equity pledge:
1. Application for cancellation of registration of equity pledge signed or sealed by the applicant;
2. Legal documents that the pledge contract is confirmed to be invalid or revoked according to law;
3. A copy of the business license of the company with the official seal of the pledged equity;
4. Certificate of designated representative or authorized agent.
legal provision
China's "Company Law" lacks provisions on equity pledge. What really established the pledge guarantee system in China was the Letter of Guarantee which came into effect on June 1 995+1October1.
Equity pledge "Guarantee Law"
Law ",including the content of equity pledge. The Property Law, which came into effect on June 65438+1 October1in 2007, once again made it clear that equity can be pledged.
Paragraph 2 of Article 75 of the Guarantee Law stipulates that "shares and stocks that can be transferred according to law" can be pledged. Article 223 of the Property Law stipulates that transferable shares can be pledged. In addition,1On May 28th, 1997, the Ministry of Foreign Trade and Economic Cooperation and the State Administration for Industry and Commerce jointly issued "Several Provisions on the Change of the Equity of Investors in Foreign-invested Enterprises", specifically confirming that investors in foreign-invested enterprises "pledge their equity to creditors with the consent of other investors".
According to the provisions of the Guarantee Law, if shares that can be transferred according to law are pledged, the pledgor and the pledgee shall conclude a written contract and register the pledge with the securities registration agency. The pledge contract shall take effect from the date of registration. Where the shares of a limited liability company are pledged, the relevant provisions of the Company Law on share transfer shall apply. The pledge contract shall take effect from the date when the share pledge is recorded in the register of shareholders.
The Property Law stipulates that if the equity is pledged, the parties shall conclude a written contract. If the equity registered with the securities registration and settlement institution is pledged, the pledge right shall be established when the securities registration and settlement institution handles the pledge registration; Where other shares are pledged, the pledge right shall be established when the administrative department for industry and commerce handles the pledge registration. The provisions of the Property Law on the registration procedures for the pledge of shares of unlisted joint stock limited companies and limited liability companies are inconsistent with the Guarantee Law. After the promulgation of the Property Law, the legal practice of equity pledge is bound by the Property Law.
According to "Several Provisions on the Change of Investors' Equity in Foreign-invested Enterprises", the change of investors' equity in enterprises shall be approved by the examination and approval authorities and registered by the registration authorities. The equity change without the approval of the examination and approval authority is invalid. Those who have not been registered by the registration authority may be punished by the administrative department for industry and commerce in accordance with the Regulations on the Administration of Company Registration.
To sum up, the equity pledge of a listed company limited by shares should be registered in the securities registration institution, the equity pledge of unlisted domestic companies limited by shares and limited liability companies should be registered in the administrative department for industry and commerce, and the equity pledge of foreign-invested enterprises should be approved by the examination and approval authority and registered in the administrative department for industry and commerce.
situation
Pre-emptive right of new shares pledged by equity
The object of right pledge is equity. Equity is the transferable right of shareholders to participate in the company's affairs and enjoy property interests in the company according to the rules and procedures stipulated by law or the articles of association. (Note: Kong Xiangjun: Research on New Problems and Judgments in Civil and Commercial Law, People's Court Press, p. 280-28 1. )
To be the object of pledge, rights must meet two basic conditions: one is property, and the other is transferability. Equity has both these attributes, so it is a qualified pledge in the pledge relationship.
Item 1 of Article 75 of China's Guarantee Law stipulates that "legally transferable shares" can be pledged. It can be seen that transferability is the only restriction on whether equity can be used as the pledge target.
First of all, the pledge of the equity of a limited liability company shall conform to the provisions of the third paragraph of Article 78 of the Guarantee Law, and the relevant provisions of the Company Law on share transfer shall apply. Article 7 1 of China's Company Law (revised 20 13) clearly stipulates the transfer of capital contribution by shareholders of a limited liability company. Referring to the spirit of this article, we can think that:
(1) Shareholders pledge their shares as creditors to other shareholders of the same company without restriction;
(2) Shareholders' pledge of shares to creditors other than shareholders of the same company must be agreed by more than half of other shareholders, and this consent must be made in writing, that is, in the form of a resolution of the shareholders' meeting;
(3) In the case of paragraph (2), if more than half of the shareholders do not agree and do not purchase the pledged equity, it shall be deemed that they agree to pledge. In this case, a resolution must also be made at the shareholders' meeting, and the time limit for other shareholders to exercise the purchase right must be clearly defined at the shareholders' meeting. At the expiration of the time limit, if they explicitly refuse to buy or remain silent, they shall be deemed to have agreed to pledge.
Secondly, with reference to the spirit of Article 14 1 of the Company Law, it can be considered that:
(1) The shares of the Company held by the promoters shall not be pledged within three years from the date of establishment of the Company;
(2) The shares of the company held by the directors, supervisors and managers of the company shall not be pledged during their tenure.
Equity pledge of foreign-invested enterprises only refers to the pledge established by investors of foreign-invested enterprises and foreign-invested joint-stock companies with their own equity as the subject matter. Comply with the Provisions on Changes of Investors' Rights and Interests in Foreign-invested Enterprises;
(1) Investors of foreign-invested enterprises who pledge their own shares must obtain the consent of other investors. If one shareholder disagrees, the pledge cannot be made. Even if the shareholders who disagree don't buy it, it can't be regarded as agreeing to pledge.
(2) The shares pledged by investors must be paid-in shares.
Because China's "Law on Enterprises with Foreign Investment" stipulates that foreign-invested enterprises implement the authorized capital system, allowing investors of foreign-invested enterprises to pay their capital contributions according to the contract or the time limit stipulated or approved by law after the establishment of the enterprise. Therefore, in foreign-invested enterprises, the acquisition of equity is not based on the actual amount of capital contribution.
(3) Unless foreign investors pledge all their shares, the proportion of foreign investors cannot be less than 25% of the registered capital of the enterprise.
In addition, whether the company can accept the company's shareholders to pledge the company's equity is also allowed by the laws of some countries under certain conditions. For example, the provisions of Article 2 10 of the Japanese Commercial Law and Article 33 of the German Limited Liability Company Law are suitable examples. Article 149 of China's Company Law stipulates that "a company shall not accept its own shares as collateral". Article 6 of "Several Provisions on Equity Change of Foreign-invested Enterprises" stipulates that "investors shall not pledge their equity to enterprises". It can be seen that China's laws absolutely prohibit shareholders or investors from pledging their shares to the company.
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