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8 For the purpose of expanding its business, Drinking Co intended to get a loan of RMB 30 million yuan for two years from City Bank and was willing to provide shares of TCL, a listed company, as a guarantee. On 15 June 2012, the two parties entered into a loan agreement and pledge agreement, which stipulated that Drinking Co should provide 10 million TCL shares as the pledge of rights. On 16 June 2012, they went to the relevant statutory institution and jointly applied for a pledge registration of TCL shares. On the date of registration, the price of TCL shares held by Drinking Co was RMB 5·00/share, total market value of the shares was 50 million yuan.
Six months after the registration of the pledge agreement, the price of TCL shares rose to RMB 6·00/share because of the substantive good news for the securities market. Having analysed the latest market situation, Drinking Co intended to sell the shares under the pledge and make an early repayment with the gains from such transactions. City Bank, however, disagreed with the proposal on the grounds that the debt under the loan agreement did not mature and this would cause liquidated damages to City Bank if Drinking Co insisted on the proposal. A dispute emerged between the two parties.
Required:
Answer the following questions in accordance with the Property Law of China, and give your reasons for your answers:
(a) state the date on which the right to pledge was established and the institution the pledge should be registered with;
(b) state the institution which the pledge should be registered with if TCL were a limited liability company;
(c) state whether City Bank was entitled to refuse the proposal of Drinking Co to sell the shares and make an early repayment.
答案：
8 This question requires candidates to deal with the legal issues in relation to the pledge of rights and the restrictions on the transfer of the right as pledged under the Property Law of China.
(a) In accordance with Article 226 of the Property Law, where the pledged equity interests are registered with the securities registration and clearance institution, the right to the pledge shall be established upon registration of such pledge. In this case the two parties applied for registration of the pledge on 16 June 2012, the day after the conclusion of the agreement. This was the date of the establishment of the right to pledge. Since TCL is a listed company, under the same provision of the Property Law, the registration of the pledge of its shares shall be registered at China Securities Registration and Clearance Company Ltd.
(b) In accordance with Article 226 of the Property Law, the registration of the pledge of other equity interests, other than the shares of a listed company, shall be done at the Administration for Industry and Commerce. Therefore, if TCL were a limited liability company, the local Administration for Industry and Commerce should be the statutory institution for registration.
(c) In accordance with Article 226 of the Property Law, no fund units or equity interest may be transferred after the pledge, unless the pledgor and pledgee agree after a consultation. In this case, City Bank and Drinking Co were the pledgee and pledgor respectively. City Bank might agree with Drinking Co’s proposal but had no obligation to do so. Therefore, City Bank was entitled to refuse the proposal of Drinking Co to sell the shares under the pledge and make an early repayment.
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