The Impact Of Examination And Approval On The Effect Of State-Owned Equity Transfer Contract

The transfer of State-owned equity is an inevitable requirement to optimize the allocation of resources,adjust industrial institutions,enhance the vitality of enterprises,consolidate and develop state-owned economy.With the pace of restructuring of state-owned enterprises in China,the state has gradually relaxed the restrictions on the transfer of state-owned shares.But for the transfer of state-owned shares of listed companies to implement the approval of the management approach,which will still lead to controversial issues.For example in the case of Chen Fa-shu and Yunnan Bai yao equity dispute,the Court of First Instance finds that the equity transfer contract is valid,while the court of second instance finds that the equity transfer contract does not take effect.In the current judicial practice,the court views are mainly the contract is valid and the contract does not take effect.There are three different views on the validity of the state-owned equity transfer contract of the unapproved listed companies,which are valid for the contract,invalid for the contract and the contract does not take effect.The law clearly provided that the unapproved foreign-invested enterprises equity transfer contract does not take effect.While there is no clear provision for the validity of the unapproved state-owned equity transfer contract.Whether the transfer of state-owned equity is subject to approval.If the contract should be approved,who is the approving authority and what to review.What is the attitude of the current legislation and the judiciary on the effectiveness of administrative examination and approval and contract?These problems also lead to the problems of current state-owned equity transfer system and state-owned assets supervision and management in the institutional mechanisms.We should pay high attention to these issues.This article attempts to sort out the relevant theories,cases and laws and regulations.Research on the impact of administrative examination and approval on the effect of the transfer of state-owned equity transfer contracts of listed companies and other related issues.Put forward some legislative proposals for the future civil code on the administrative examination and approval and the effectiveness of the contract should be held by the attitude.Make some suggestions for how to improve the state-owned equity transfer system and how to improve the supervision and management of state-owned assets combined with the case discussed in this article on.This article consists of three parts:introduction,text and conclusion,in which the text is divided into four parts.The first part is to sort out the views of the scholars in the theoretical circles on the effectiveness of administrative examination and approval,the judicial attitudes of the court on the different attitudes of the problem and the current law on the attitude of the issue,to reflect on the existing problems in the existing laws and regulations,comparing different views and putting forward the "administrative behavior elements".Finally,make recommendations for the future civil code on the issue of the attitude should be.In the second part,the author through concrete case analyzes the effect of administrative examination and approval on the effect of state-owned equity transfer contract and questioned the application of the laws and regulations and the trial logic of the judgment of the court of second instance.Then the author take advice for transferee.In the third part,he author through the civil law on the other different theories to analyze the relationship between administrative examination and approval and the validity of state-owned equity transfer contract,which are the theory of debt,"distinction principle" of the property law and use the"administrative behavior elements that" into actual case to test its rationality and feasibility.The fourth part is making recommendation on how to improve the state-owned equity transfer system.