Comment On The Case Of Equity Transfer About Biaobang Company And Anshan Finance Bureau

The operation mode of state-owned equity invigorates the use efficiency of operational state-owned assets and is conducive to the main tenance and appreciation of state-owned assets,which is a kind of institutional sublimation.Among them,the transfer of state-owned equity is an important means to optimize the ownership structure of state-owned enterprises,realize the transfer of state-owned capital to the key areas and lifeline industries that can really play a leading role in the national economy,and promote the healthy development of the national economy."The dispute over the transfer of shares between Shenzhen Biaobang Investment Development Co.,Ltd.and the Anshan Finance Bureau" is a communique case of the Supreme People's Court and a financial state-owned equity transfer dispute.There are two core disputes in this case.Firstly,how to determine the validity of the state-owned equity transfer contract.Secondly,when Anshan Finance Bureau violates the obligation of submitting approval,it advertises the specific remedies that the company can obtain according to law.As for the determination of the validity of the contract,there is no dispute that the contract involved has been established.The difficulty lies in whether the contract is effective or not.The effectiveness of the contract needs to have the general and special requirements.In the general requirements,it is necessary to examine whether the Anshan Finance Bureau has the right to transfer the state-owned shares of the Anshan Bank,that is,whether the qualifications of the parties are qualified.Among the special requirements,it is necessary to examine whether the state-owned equity transfer contract needs administrative examination and approval,and how to determine its effectiveness if the contract fails to pass the examination and approval.Specifically,Anshan Finance Bureau,as the shareholder of Anshan Bank,has the right to transfer the state-owned equity held by it according to law,that is,subject qualification;To understand the word "contract" in essence,the basic content of the contract signed by the parties is the transfer of the state-owned equity involved in the case,which naturally needs to go through the examination and approval of the competent authorities.Because Anshan Finance Bureau has terminated this equity transfer,and has transferred the equity involved in the case to others,it has been determined that it cannot fulfill the obligation of submitting approval,the court should determine that the state-owned equity transfer contract involved in the case is established but does not take effect.The key to the problem of what kind of remedy the Biaobang Company can obtain is to determine what kind of liability the parties should bear when they violate the obligation to submit approval and the scope of liability that follows.Under the legal framework of binary contract liability in ou r country,because the case contract is established but not effective,Anshan Finance Bureau should assume the responsibility for contracting negligence,and should compensate for the loss of trust interests of the company,that is,the loss suffered and t he loss of interests that can be determined,including the loss of trading opportunities.As for the loss of the profits claimed by the company,it belongs to the benefits that the company can obtain after the contract takes effect and is actually fulfille d.The expected benefits actually fall within the scope of liability for breach of contract.Since the determination of the contract in the present case did not take effect,the claim should not be supported.