Analyze On Stock Right Transfer Contract Validity Of Joint Venture Without Approval

Sino-foreign joint venture enterprise equity transfer agreement lacksadministrative examination and approval, divided into "contract shall be invalid","inactive contract said" and "contract effective said". According to the supremepeople’s court on the applicable "contract law of the People’s Republic> theexplanation of some issues (a) of the provisions of the", without the administrativeexamination and approval as a sino-foreign joint venture equity transfer agreementfor not playing take effect, so "contract shall be invalid said" has no judicial practiceeffect. A "contract shall be invalid,""inactive contract said" embodies the parties tothe autonomy of respect. This paper follow the rule of the route of the progress,combined with the supreme people’s court on the equity transfer contract the hearingof the case, to set reasonable administrative examination and approval of regulatoryprivate trading way as the goal, set based on equity transfer agreement effectivenessand equity transfer behavior actual performance the separation of system platform,seeking support "joint venture equity transfer contract even without approval foreffective also" the position of the legal basis, so as to solve the "inactive contractsaid" can not explain the obligor actual performance requirements and approval forthe legitimacy of the contract is not effective in its foundation and fails to perform theoccasion of the liability for breach of problems should.First of all, for the joint venture equity transfer behavior analysis, determinationequity transfer behavior nature shall prevail real right behavior, equity transferbehavior is divided into equity transfer agreement and equity actual performance twoparts. In line with the private law autonomy tolerance, respect the freedom of contract,guarantee the purpose of trade safety, to distinguish between real right principle of administrative examination and approval control are the performance of the contract,and the effectiveness of the contract, thus forming the administrative examination andapproval and contract effectiveness are separate adjust the thought.Second, more inactive contract and contract effective, the legal effect, verified"contract effective said" legitimacy."Inactive contract said" mode, the contract party’sbreach of contract obligations agreed approval, the nondefaulting party no claim tothe foundation, the defaulting party to perform the court approval after obligations,also can’t ask taxpayers and approval for actual performance inactive contract. Coverfor not effective contract based on the legal effect, only bear contracting negligenceliability, contracting negligence liability according to the normal, and the more fordamages. But the non-breaching party pursue interests as the interests of the actualperformance contract, according to the contracting negligence liability for "faithbenefit" damage claims is far less than the interest of contract actual performance. Inthe "contract effective said" mode, based on the effect of the contract law effect, thenon-breaching party when the responsibility of breach of the rules according torequest specific performance in order to achieve the actual performance objective,also or through the request pay a penalty to make up the loss, the security rights andinterests.