| With the deepening of China's reform and opening up,foreign investment in China is increasing,and disputes caused by investment increase as well.More and more foreign-related cases will be ruled by our mainland courts,and the results of the judgment will directly affect the image of our host country.In foreign civil and commercial cases,the company disputes cases happened frequently,and the transfer of equity is the most commonly occurred among these disputes.The transfer of equity can effectively promote the financing of the company,optimize the allocation of resources and realize the purpose of shareholders' investment.Therefore,it is of practical significance to handle the transfer of foreign equity properly.But the court often cannot identify a case in the trial of foreign equity transfer disputes accurately.Whether the equity transfer dispute is recognized as an internal corporate governance dispute or an external infringement dispute will be directly related to the citation of the conflict and the application of the applicable law.Especially after the promulgation of The Law of the Application of Law for Foreign-related Civil Relations of the People's Republic of China,the expansion of the scope of application of the legal person law is virtually increasing the difficulty of the court hearing such cases.Whether the article 14 of the Applicable Law shall be quoted to act as a conflict rules to determine the applicable law,or the article 44,the conflict rules of tort,to be applied to determine the applicable law,is really a headache problem for judges in such cases.And this article is precisely try to find out the omissions in trying such case through the analysis of the case,so as to put forward targeted recommendations to solve this problem and provide a way of thinking.The full text is divided into five parts.The first part is the case brief,mainly introduces the situation of the case,the focus of controversy and the court ruling;The second part mainly introduces the issue of private international law in this case,mainly about the recognition and the application of law.At the same time,the author puts forward what is appropriate for this court in explaining and demonstrating reasons of recognition and application of law;The third part is based on the second part of the case,gives rise of reflection of the author about private international law problems,which focuses on the Article 14 and Article 44 of the Applicable Law on its legislative background and history,and then put forward their own assumptions.What kind of applicable law and the judgment will be applied if the case is shareholder representative litigation;The fourth part is the proposal for applying the law of the civil court in hearing the foreign civil and commercial case.It mainly puts forward the suggestions from three aspects,namely,the establishment of the court's interpretation responsibility,the judicial interpretation of Article 14 of the Applicable Law,the Supreme Court published guidance case;The fifth part is a summary of the full text. |
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