On The Application Of Instalment Payment Rescission System In Equity Transfer Contract

On September 19,2016,the Supreme People's Court issued the guidance case No.67,the referee pointed out that the equity transfer dispute does not apply to the provisions of Article 167 of the Contract Law on the right of rescission.The Supreme People's Court explained the view that the equity transfer contract does not apply to Article 167 from multiple aspects,such as the installment payment contract mainly occurs in the consumer contract,the purpose of the contract can be achieved,principle of honest,maintain transaction stability.However,due to the fact that part of the reasons deviated from the legislative intent of the installment payment system,failed to fully understand the essential characteristics of the installment transaction,the academic and practical circles have engaged in many disputes.Therefore,it is necessary to sort out and study the installment payment rescission system,and it also helps to provide a way for judicial practice judgment and legislative improvement.The opinion in Guiding Case No.67 limits the seller's right to exercise the right to terminate the contract and to pay the full right of the claim,and excludes the application of other rights transfer contracts in the installment payment rescission system,so the core dispute arising from the case The point is whether the installment payment rescission system can be applied in the equity transfer contract.Clearing the legislative purpose of the installment payment rescission system is the premise for judging whether the system can be applied in the equity transfer contract.From the legislative background of the installment payment system,the original intention of the installment payment system is to protect the interests of the buyer.From the perspective of the "Contract Law","Interpretation of Sale Contracts" and the entire framework of relevant laws and regulations,the installment payment rescission system is stipulated in the section "Sale Contracts",China's law does not restrict the installment payment system to consumer contract.Moreover,the "Contract Law" imposes certain restrictions on the seller's right to release the installment in the installment purchase,only when the buyer fails to pay the price of one-fifth,the seller can exercise the right.When the agreement between the parties regarding the termination of the contract is not conducive to the buyer,the agreement is invalid.Therefore,the installment payment rescission system is a mandatory requirement to protect the interests of the buyer.In addition,the contractual right to be rescinded by the seller cannot be denied on the grounds of maintaining the stability of the transaction,because the right to cancel the installment payment is a means of relief for the seller in the event of default,Article 97 has specified the consequences of the contract cancellation and remedies,the consequences of the termination can't deny the right of rescission.Therefore,the legislative purpose of the installment payment rescission system is to protect the buyer's interests on the basis of providing relief to the seller,and limit sellers to abusing the right of rescission.The installment transaction is a form of transaction that requires the buyer to pay at least three times and pays more than two times after the delivery of the subject matter.It has two basic characteristics: the payment of the installment and the delivery of the goods.Having the basic characteristics of installment payment is the premise of judging whether the contract can be applied to the installment payment rescission system.The provisions of Article 167 on the conditions for exercising the right of rescission are more special than those in Article 94.Based on the protection of the interests of the buyer,the seller should first make a reminder before exercise the right of rescission.The exercise of the right to pay the full amount is not a pre-procedure to exercise the right to cancel the installment payment.Because the two rights are equal in time,the seller has the right to choose one.The right of contract rescission and the right of claim for paying the full price is a parallel and equal relationship.The equity transfer contract belongs to the “other paid contract” as stipulated in Article 174 of the Contract Law,and has the same characteristics of temporary,property and transfer of the subject matter of the sale and purchase contract,and the equity transfer contract can have the two basic characteristics of installment transaction.Because China adopts the legislative style of civil and commercial integration,does not separately provide the relief for equity transfer contracts.Therefore,based on the applicable rules of Article 174,the equity transfer contract can apply to the relevant provisions of Article 167 for the rescission of contracts.Other property rights,such as creditor's rights,intellectual property rights,land use rights,have the same characteristics as the subject matter of the purchase contract,and the transfer of rights may also take the form of sale and purchase,most countries or regions consider that the rules of sale apply to the transfer of property rights.Therefore,other property rights transfer contracts can also refer to the applicable installment payment rescission system.