The Study Of Validity Of The Stock Pledge Contracts

The article is divided into six parts.The first part introduces the fact that with the rapid expansion of scope of the stock pledge,the stock pledge is very messy,and the potential financial risks continue to increase.Such messy is not only reflected on administrative management,but also on the legal regulation,what's more,because of the unclear of the legal regulation,it usually lead to situations like similar cases with different sentences,which at some extend hinder stock pledge's function of guarantee and financing to be realized,and go against the growth of physical economic.The second part discusses the nature of the stock pledge contracts,and define the contract should be a consensual contract,as well as emphasis its formality and contractual nature,which is helpful for the followed concrete analysis of validity of the contract.The third part simply analysis the relationship of stock pledge contracts and the stock pledge right.The case study shows that thejuridical practice in our country has already distinguished the credit behavior and real right behavior,and acknowledged "the theory of juristic act of real right in practice".On the basis of different state of validity of the contracts,the fourth and five parts discuss the state of contract as effectiveness,invalidity,should be validity,and the validity to be determined.In the part of invalidity,the author analysis the relationship between pledge of stock and transfer of stock,and think that they should be separated since that they are no necessary relation.And from the case study,analysis of regulations,the author also concludes that the equity pledge contract should not be limited within the provision 16 and 71 of the Company Law,and equity pledge contract pledged by the foreign-invested enterprises without the government approval also should be valid.Although on the surface the dormant shareholders and nominal shareholders,subscript shareholders and defective capital contribute shareholdersare likely to be unable to be authorized for disposal stocks,the contract should be commit effective instead of to be determined.Finally,through research on relevant cases,the author concludes that concept of separate obligatory right and right in rem and the theory of disposition with pending validity has been adopted in practice.To conclude,this long time and rich experience accumulated during the practice in China should be given full consideration,at the same time,should be adopted in legislation of the civil law code.