On The Legal Application Of The Right To Terminate The Equity Transfer Contract By Installment

According to the first paragraph of Article 167 of the contract law of China,the seller of installment payment can require the buyer to pay the whole price or terminate the contract when the buyer's overdue payment reaches one fifth of the total price.Because the article does not explicitly mention the dispute about the right to terminate all installment contracts including equity transfer,whether the equity transfer contract of installment payment can refer to Article 167 of the contract law is controversial in practice.That is to say,if the equity transferor pays the equity transfer payment by installments,when the transferee fails to pay one-fifth of the total equity transfer payment due,can the transferor invoke the provisions of article 174 of the contract law,and then refer to Article 167 of the contract law to require the transferee to pay all the equity transfer payment or terminate the contract,which is not clearly stipulated by the law.As a result,different courts may make different decisions in the same case.In order to unify the judicial judgment,the Supreme People's Court issued the case No.67 under the guidance of "Tang Changlong v.Zhou Shihai equity transfer dispute case",which clearly pointed out that if the transferee of the equity payment byinstallments delays the performance of the obligation to pay the transfer money and the transferor of the equity requires the termination of the contract,the provisions of Article 167 of the contract law shall not apply.Although it is the same installment payment,compared with the sales contract with the subject matter as the object,the equity transfer contract has a series of particularity.With the release of the guidance case,the evaluation and analysis of the case is not only advocated,but also for different reasons.From the original meaning of guiding cases,the value of this key point lies in guiding the judgment of equity transfer contract cases of installment payment,but the statistics of cases show that it is still a long way from the goal of "unified legal application standard" in judicial practice.It is worth noting that whether the equity transfer contract belongs to the installment sale contract is easy to be ignored or avoided when the Article 167 is applicable to the dispute of equity transfer of installment payment.In the case that it is not clear that it belongs to the installment sales contract,that is to say,referring to the application of Article 167 of the contract law,it is not only not conducive to safeguarding the interests of the parties to the contract,but also to some extent leads to the confusion of the application of the law.In view of this,we should attach great importance to the recognition of whether the equity transfer contract of installment payment conforms to the characteristics of installment payment in judicial practice.