The Study Of Tang V Zhou Equity Transfer Contract Dispute Case

The legal provision that instalment business removes authority wants to undertake an analysis from two different angle,one is applicable limits,the other is to exercise a condition.For the applicable scope of the problem: from legal theory,the consumer contract and has essential difference between equity transfer contract,due to the equity transfer contract belongs to the commercial contract,both personal and property attribute of equity,should not be simple to apply pure standard property attribute from the civil contract rules,"contract law" article 167 equity transfer contract applicable to exclude;From the perspective of legal norms,in this article 167 on the question of existence hidden loopholes,the legislative purpose is mainly balance interests of both sides,protect consumers,according to the rules of the teleological narrowed the fill will be narrowed,the applicable scope of the law also does not expressly prohibited provisions cannot be narrowed,the judge can be excluded from the equity transfer contract scope;From the perspective of the judgment of similar cases,the court did not distinguish between the equity transfer contract or other contracts,only is for request to accelerate the maturity,has nothing to do with the request to cancel the contract,can't no guiding significance to justify the court's decision,the other court will be more in accordance with the provisions of article 94 of the referee,not simple in article 167 of the directly applicable.For exercise conditions: In theory,mainly involves the relationship between the article 167 and article 94 of the problem,both belong to the analogy,instalment buying and selling the seller can terminate the contract on the provisions of article 94 of the applicable,according to the legal loophole of legal knowledge,article 167 of the existing open on this issue of legal loophole,or to use analogy apply legal principles to make up the loopholes,the assignor or betray a person to fulfill their claims,giving each other the reasonable time of performance,the contract purpose can be fulfilled,whether constitute a fundamental breach,whether against contract law basic principle,is an important reference for the court when the referee to cancel the contract conditions;Will tell from legal basis,equity transfer payment to nameless contract,can consult applicable regulations or the provisions of article 167 of the general rules,since it is "reference",so the judge can not refer to article 167 of the applicable,equity transfer payment contract termination condition is not applicable to article 167,the law does not expressly prohibited;From the perspective of similar judgments,the court has always been adhering to the tradition of giving consideration to both article 94 and article 167 in the exercise of the right of rescission of the installment purchase and sale.In the first judgment reason of the Supreme Court,the distinction between the purpose of consumption and the purpose of obtaining economic benefits as the main reason for excluding the application of article 167 is not appropriate,because there is no essential distinction between the equity transfer contract and the consumer contract,and the most essential difference between the two is whether they have personal attributes.As for the other reasons,in jurisprudence,we make use of the general provisions and the basic principles of the contract law to make up the loopholes in the continuation of the judge's law.For the problem of scope of application,skopos theory is used to limit the scope of application.And to exercise a condition problem,what use is analogy method,analogy applies the regulation of general principle and basic principle to make up the loophole that article 167 goes up in applicable condition.