The Study On The Legal Right To Cancel The Equity Transfer Contract In Installment Payment

Currently,the application of instalment transaction is more and more extensive,and in the installment transaction with equity as the object,since the equity has been delivered in advance,the seller often faces many difficulties in exercising the statutory rescission right.In order to better play the role of the installment transaction in the field of equity transfer,this article puts forward three core problems existing in exercising the right to rescind the installment transaction based on the key points and reasons of the judgment of Case No.67,that is to say,the exercising basis,the exercising condition and the exercising consequence of the statutory rescission right of the installment transaction with equity as the object.Then,on the basis of studying the legislations and theories at home and abroad and the present situations of our country's judicature,this article puts forward some suggestions on improvement.Firstly,through being compared with the legislations of other countries and regions and the judicial practice of our country,it is found that the vast majority of countries and regions have recognized that installment transaction can be applied to those fields other than living consumption.In addition,compared with traditional instalment transaction,equity instalment transfer is highly consistent in terms of transaction nature,form characteristics and transaction risk.Therefore,the rescission clause of Article No.167 of Contract Law may be taken as the legal basis for the rescission of the installment equity transfer contract.Next,on the basis of analyzing the rescission conditions of the traditional instalment contract,combining with the uniqueness of the contract in the aspects of the object nature,the delivery of the object and the consequence of rescission,this article puts forward the viewpoint of special restriction on the rescission conditions of the contract.In order to balance the interests of the two parties in the transaction of the installment equity transfer,this article further puts forward the suggestions on the improvement of conditions for the exercising of the rescission right of the installment equity transfer contract.At last,on the basis of case analysis and theoretical discussion,this article puts forward the way of establishing the system of the consequence of rescission of the contract of instalment equity transfer,i.e.,to regulate the consequence of rescission of the contract of instalment equity transfer in Company Law.In this regard,this article takes the eclectic theory as the basic theory of rescission of the contract,and discusses and analyzes the obligation of restitution and the special cases of the compensation for damages.Then it defines the obligation of restitution in instalments,and advocates that the characters based on shareholders of the limited liability company and the priority of the Company Law should be taken into account when it is difficult to be restituted.At the same time,it puts forward that the compensation for damages caused by the rescission of the installment equity transfer contract should be based on the principle of willful or gross negligence,and the corresponding compensation treatment system should be established according to the different circumstances of whether the buyer has disposed of the object and whether the equity has been restored to the registration of alteration at the time of the rescission of the contract.