On The Effectiveness Of Unapproved Foreign Equity Transfer Contract

Joint venture equity transfer contract without the approval of the state administration, divided into "invalid contract", "the entry into force of the contract is not to say" and "valid contract says." "Invalid contract said," As an initial proposition, as China in terms of technology to improve the effectiveness of the contract and maturity, the doctrine has little effect, "the entry into force of the contract is not to say" mainstream theory, and the Supreme Court "on the application of <Chinese People Republic of contract Law> interpretation of Several problems(a) " that the effectiveness of the joint venture equity transfer agreement was not in effect without the approval, but " not in force a contract saying " twists and turns on the interpretation of judicial workers increased without the approval of understanding and application of the effectiveness of foreign equity transfer agreement, the paper explains the use of "commencement of the contract, said," from a rational point of the legislative level.First, in the context of decentralization, discuss the need for administrative approval for foreign equity transfer contract efficacy studies, on the one hand, many of the administrative examination and approval stage suited to the market economy retained the planned economy era, leading to the class complicated dispute, the trial is difficult; on the other hand, the control of administrative examination and approval of foreign investment related to the country’s economic security.Secondly, by three parts, elaborates, "said the contract is invalid," "not in effect, said the contract" and "contract valid to say" produced in accordance with the legal effect of comparison between the three, at this stage of judicial theory and practice will be in the "not commencement of the contract, said, " Tong said as reasonable, and from the " contract is invalid, said, " the problems, the difference between the contract and the contract does not become effective invalid, the validity of the contract is not in effect, approval status and role obligations, failure to fulfill the obligations of judicial approval relief five aspects of argumentation. These are the effect of foreign equity transfer contract from the current law and judicial interpretation of the provisions of the administrative examination and approval without analyzed Finally thinking on these issues from the legislative point of view, about the validity of the contract without the approval of Are there other solutions? And then start from the principle of property law will distinguish foreign equity transfer behavior is divided into two parts, one is the behavior of the equity transfer contract signed by both parties, and the other part is the actual changes in equity. As a quasi-property rights and equity, resulting in administrative approval and the effectiveness of the separation of the equity transfer contract model, the effectiveness of a burden on the behavior of the equity transfer agreement and will not be affected without administrative approval, when the other willful default or omission when observant party may request the other party to fulfill their obligations in accordance with the entry into force of the contract, liquidated damages or proposed contract. The conclusion that, compared to "the contract is not in effect, said," Administrative Examination and validity of the contract approach to facilitate the operation of distinction boost contract mechanism; Administrative Examination and validity of the contract in line with the proportion of differentiated approach in principle.