| Our country real estate industry already becomes one of present market economy pillar industries. State Council Premier Wen Jiabao makes time the government service report in ten sessions of National People's Congress five conferences pointed out that, "The real estate industry have emphatically greatly affects in developing the economy and improving the people housing condition, our government must promote the real estate industry to continue the health development." The real estate industry development is relating the broad masses' vital interest, in order to promote it to have the foreword development, the country needs carry on the certain intervention to the real estate market. The market economy is the government by law economy, the request that state intervention economy mainly carries on through the legislation way. Therefore, the laws and regulations and the rules related real estate industry are very important constituent about our country market economy law system. Which the real estate company that is the real estate market main body is carried on the legal rules and regulations is also a national legislation intervention real estate industry part. The development and management entire link of the real estate company be supposed to receive our country real estate correlation law laws and regulations adjustment. Specially along with market economy more and more active, embarks from financing and the conformity goal, the real estate company is also frequently in the property right current distribution realm activity, for example, real estate company's each kind of purchase, and buys the behavior, also includes the real estate company the stockholder's rights transfer behavior and so on. At present, the rules and regulations about this is the legal blank, therefore, it is very urgent need for market economy by law construction to perform the rules and regulations to its legislation. The real estate company stockholder's rights transfer is the behavior which transfers the property development rights and interests, in the present service operation, the real estate company stockholder's rights transfers more is more considered as one kind of form about the real estate company property and the project purchase. Entire link about the stockholder's rights transfer refers to two aspects contents which are the company legal affair and the real estate legal affair, must consider multitudinous factors, possibly undertakes huge risk, but at present it may be suitable the legal basis only is "Company Law" about the stockholder's rights transfer stipulation. Therefore, the litigant basically only can depend upon own autonomy behavior to control the transfer behavior and guard the risk in the service operation. Because the stockholder's rights transfer operation is very high request to litigant's quality, from the overall that, the reality operation is not extremely standard, burring very many hidden dangers, and afterwards also having many disputes. The author believed that, it is necessary for the real estate company stockholder's rights transfer to carry on the special moderate rules and regulations by law, on the basis of the litigant autonomy in the stockholder's rights transfer, the state introduces intervention mechanism, carrying on corresponding, supervising and managing by the department responsible for the work, and designing science operation standard related to real estate company stockholder's rights transfer, strengthening the autonomy ability of the market main body, finally achieving to standard real estate company stockholder's rights transfer behavior, and maintains the market good order of the real estate company property rightThis article divides into three parts:The first part is analyzing legal principle theory of law to the real estate company stockholder's rights transferThe second part analyses that the real estate company stockholder's rights transfer existence legal matter and its causing reason. The author has induced the questions which exist in real estate company stockholder's rights transfer supervising and managing and in the solid service operation, at the same time the author has carried on the detailed reason.The third part is legal system design related to the real estate company stockholder's rights transfer. The author believed that, it should carry on the special rules and regulations by the national legislation to the real estate company stockholder's rights transfer, the introduction country supervising and managing mechanism. The author expresses own opinion which refers to the flow design about the entire process on the real estate company stockholder's rights transfer, hoping that these suggestions have the reference or the model to the national legislation, supervising and managing and the market main body operation.Needs to explain, for discussion convenient, as well as restricted in author's level, this article makes following several aspects definition: This article discusses all company which only refers to the company limited in "Company Law". This article only discusses the stockholder's rights transfer behavior in the real estate profession, system design as for this article whether uses in common to other enterprises' stockholder's rights transfer, or other companies which have the possibility to involve the stockholder's rights transfer of the real estate rights and interests, it is not the scope which this article discusses. This article discusses the real estate company stockholder's rights transfer which is restricted in take purchases as the goal stockholder's rights transfer, namely the transfer stockholder's rights can achieve the goal that control completely the company or the company asset rights and interests. Because other goals or other special forms stockholder's rights transfer is not the scope which this article discusses. Based on particularity of the state-owned stockholder's rights transfer and the foreign capital stockholder's rights transfer, it all has the corresponding system to give the roles and regulations and also is inconsistent with this article writing goal, therefore this article does not involve this two kind of stockholder's rights transfer. |
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