Comment On Stock Right Transfer Controversy Case Of XianYuan Co.、ZhongXing Co.、YuanXing Co. And Financial Management Co.

In terms of the fact that Sino-foreign joint venture equity transfer agreement lacks administrative examination and approval, there are three main views, namely "contract are not invalid","contract has not come into effect" and "contract is effective". According to the second paragraph of the forty-fourth article of "Contract Law" and relevant regulations in the ninth article of supreme people’s court’s "About the Application to’Contract law of the People’s Republic of China’(a)" and the first article of " Provisions of the Supreme People’s Court on Several Issues Concerning the Trail of Cases of Disputes of Enterprises with Foreign Investment (a)", the administrative examination and approval of Sino-foreign joint venture equity transfer agreement is ineffective, so the view of "contract are not invalid" for this kind of the effectiveness of the contract has been marginalized. Compared with the view of "contract is not invalid", the views of "contract has not come into effect" and "contract is effective" reflect a certain kind of self-management. This paper starts from judicial practice, combines study on people’s court hearing on this kind of stock right transfer case. Through the analysis of controversial focus and the comments made on the court verdict, it is clear to judge that it will be disadvantageous to combine the effectiveness of contract with the practical implementation of contract. Therefore, the practicability and rationality of separating the administrative examination and approval and the effectiveness of contract are proved.Through the analysis of the joint venture equity transfer behavior, the paper exports the equity transfer behavior of the nature of the quasi real right, distinguishes the two parts of equity transfer behavior, the equity transfer agreement and the equity of the actual performance. Therefore, the route of separating administrative examination and approval, and contract effectiveness is shaped.Demonstrating the legitimacy of the view "contract is effective" and its advantages. Taking the model of "contract has not come into effect", when one party of the contract violates the obligation of reporting and approval, due to the lack of basic petition right, the other party can’t bear the corresponding obligations, therefore, even if the court judges the breaching party to assume corresponding obligations, they are also unable to request obligation party to implement the actual performance of this not-coming-into-effect contract. Taking the model of "contract is not invalid" has not only constituted unfair restrictions on the freedom of investors, which will be not conducive to the solution of the dispute, but also brought destruction to the autonomy of private law. Taking the model of "contract is effective", can smoothly based on the legal effect of enacting the contract to require approval obligor bear the liability for the breach of contract, and realize his actual performance of the compulsory remedial measures, and to pay penalty due to breach of contract, in order to safeguard the rights and interests of the party of contract performance.