On The Application Of Commercial Law Thinking In The Judgment Of Equity Transfer Contract Validity

Equity transfer disputes are the most common types of disputes in corporate law practice.The core issue of such cases is the determination of the validity of the equity transfer contract,and the correct determination of the validity of the contract is crucial to the performance of the contractual rights and obligations of the parties and the commitment of the contractual responsibility.important.Due to the application of the contract law and the application of the company law rules,such cases inevitably have conflicts between civil law rules and commercial law rules,civil law thinking and commercial law thinking.Judges holding different referee thinking will inevitably lead to significant differences in referee results.Generally speaking,in the judgment of the effectiveness of the equity transfer contract,the courts of China have habitually deduced from the analysis of the contract law,which reflects the civil law thinking,neglects the application of commercial law thinking,and violates the economic and efficiency principles of commercial transactions.Therefore,it is of great theoretical and practical significance to analyze the problem of referee thinking in commercial cases in China and to explore the correct application of commercial law thinking in the judgment of the effectiveness of equity transfer contracts.This paper mainly uses empirical research methods,which are divided into three chapters.The first chapter examines the status quo of the application of commercial law thinking in the effect of equity transfer contract.By selecting a total of 229 equity transfer contract disputes from 2016 to 2018 as a sample,we sorted out the cases,and analyzed the cases,the types of judgment documents,the application of business law thinking,and the results of judgments.In practice,due to the differences in referee thinking,there are often different cases in the same case.Even if the judgment results are similar,the thinking and basis used in the judgment part are not the same.The application of civil law thinking far exceeds the commercial law thinking,and many cases The reasoning process is too simple.The second chapter mainly discusses the necessity of applying commercial law thinking in the judgment of the effectiveness of equity transfer contract.Equity transfer has a clear profitability and transactional nature.Based on the particularity of the equity transfer contract,such case referees should focus on the protection of transaction security and reliance interests,and maximize the promotion of transactions.The contract validity criteria should be more stringent.Judicial trial attitudes should be more cautious.There is a big difference between commercial law thinking and civil law thinking.The focus of commercial law thinking is on the overall trading rules of commercial society,focusing on the profitability of commercial transactions and the efficiency of commercial transactions.The commercial law's rights rules are different from civil law,and commercial law emphasizesism.Remedy,not overthrow,is the efficiency law.The profit nature of commercial transactions determines that commercial judgment requires business law thinking.The third chapter puts forward specific suggestions on the application of commercial law thinking in several types of equity transfer contract validity in judicial practice.For the application of efficiency thinking,we should insist that efficiency value takes precedence over fairness and other values,which is the essential requirement of commercial law thinking.In the case of the interests of the original shareholder,the interests of the transferee,and the conflicts of interests of other shareholders and the company,it is not determined in accordance with the substantive fair standards of the civil law,but the contract validity is determined under the standard of facilitating multiple transactions within a limited time.The referee can promote the repeated conduct of the equity transaction and protect the investment results and the parties' contractual behavior.Since the essence of merchants' commercial activities lies in profitability,the judge must maximize the profitability and transaction efficiency as the main considerations for judging the validity of the contract,and consider the subject of equity transfer,the nature of equity,and the purpose of equity transfer.At the same time pay attention to the application of group law thinking,judges must first distinguish between group interests and external interests in the referee.When conducting conflicts,we should balance the two while paying attention to the protection of the group's overall interests.When dealing with such disputes,the judges must handle the balance between the interests of the group and the interests of the shareholders,and at the same time protect the interests of third parties.Second,it is necessary to apply proper business continuity thinking.When the judge determines the validity of the contract,he must pay attention to the maintenance of the transaction results,and can not easily negate the validity of the contract.Otherwise,the existing transaction results will be negated when the rights are returned to the original state.Judges need to pay attention to the consequences of the entire equity transfer and the entire transaction order,focusing on the dynamic flow of equity rather than the static protection of equity,the balance of protection of transaction results and multi-party interests is the value orientation of commercial law thinking.