Research Of The Effectiveness Of Contract Breaching Article 71 Of 《Corporation Law 》

The transaction of stock of closely held corporations often is limited by restriction.The purpose of the restriction is to protect human resource integrity of closely held corporations from destruction.In China,law of restriction of transaction of stock derive from Article 71 of 《Corporation Law 》.whether a contract which violate Article 71 of 《Corporation Law 》is valid,this question is very controversial in judiciary practice.Methods of judiciary practice using to solve the question have three patterns,first pattern is using character of Article 71 of 《Corporation Law 》,second pattern is protecting human resource integrity of closely held corporations,third pattern is using principle of distinguish.Author deem,for solving this question,solution ought to derive from the purpose of Article 71 of《Corporation Law 》,this could make the judgment of efficacy of contract conform lawful value of Article 71 of 《Corporation Law 》.In addition to the introduction and conclusion,this article is divided into five parts.The first part base on Article 71 of 《Corporation Law 》and analysis that there have two kinds of lawful purpose of Article 71 of 《Corporation Law 》,the first is to protect human resource integrity of closely held corporations,the second is to guarantee right of stocker to transfer stock.Specifying the purpose of Article 71 of 《Corporation Law 》is beneficial to discuss this question.The second part conducts empirical analysis of civil cases about Article 71 of 《Corporation Law 》.Cases are mainly collected from China Judgment Documents Network and Peking University Magic Weapon,total 69.In this part,author analysis representative documents of judicial judgment,summarize ratio decidendi,and discuss correctness of documents of judicial judgment.The third part base on the lawful purpose of Article 71 of《Corporation Law 》,analysis the contract of transferring stock which breach Article 71 of 《Corporation Law 》.This part conduct deep reason why court make this kind of judgment,and explain difference between contract of transferring stock and performance of transferring stock.Using adjudicating scope of Article 71 of《Corporation Law 》explain that validity of transferring stock contract which break requests of Article 71 of 《Corporation Law 》would not break the lawful purpose of Article 71 of 《Corporation Law 》what protect human resource integrity of closely held corporations.The fourth part discuss that when transferring stock contract which break requests of Article 71 of 《Corporation Law 》is valid,not only human resource integrity of closely held corporations is maintained,but also profit of bona fide stock purchaser could be well maintained and this consequence would promote that seller of stock perform his duty seriously.The fifth part specific attitude which court of America dispose similar cases and inspect legislation and case law of America.Because lawful source of restriction of transferring stock is different,court of America pay more attention on protect profit of bona fide stock purchaser.The practice of America court,in some respect,is referential by Chinese court.