Research On The Application Of Rescission Right Of Equity Transfer Contract By Installment

The Guiding Case No.67 issued by the Supreme People’s Court held that the contractual right of release of installment payment equity transfer contract cannot be applied to Article634 of the Civil Code,which has been hotly debated in academic circles and disputed in judicial practice,therefore,it is necessary to study the application of the right of release of installment payment equity transfer contract.At present,there are few domestic and foreign studies on the application of the right of release of installment equity transfer contracts,mainly case reviews in China and foreign studies on the right of release of installment sale contracts,but no systematic analysis on the issue of release of installment equity transfer contracts themselves.It can be seen that the existing research is scattered and not deep enough,and there is a need for a systematic and in-depth study of the issue to deal with the new problems that keep emerging.By analyzing the current judicial situation,the author found that the cases concerning the right to rescission of installment equity transfer contracts are characterized by serious disparity in judgments,high appeal rate and the tendency of the courts to restrict the application of the right to rescission,and the applicability of Article 634 of the Civil Code to the rescission of installment equity transfer contracts is controversial.There are also problems of unclear liability.In this regard,a more recent analysis is needed in connection with the interpretation of Article 634 of the Civil Code.The legislative purpose of Article 634 of the Civil Code is to balance the rights and interests of the buyer and seller,and the scope of application of this article is not limited to the field of life and consumption,and with the addition of the element of reminder,the installment payment clause can be applied independently without the need to rely on the statutory release clause.Therefore,the installment equity transfer contract can be applied by reference to Article 634 of the Civil Code.In order to improve the rules of application of installment equity transfer contracts,first,the principle of measurement of interests should be applied,not only between the transferor and the transferee,but also between the transferor and the company;second,the conditions of application should be regulated,including substantive conditions,procedural conditions and restrictions;third,the order of application should be improved,in principle,there is no order in the application of the termination of the contract and the payment of the full price.Fourth,to clarify the applicable liability,the contract will not necessarily be returned to the transferor after the release of the equity,but between the transferor and the transferee to generate new claims,so that the right holder can still claim the original contractual liability for breach of contract and the creation of security obligations.Even if the equity transfer contract is discharged by judgment,it will not affect the personhood of the limited liability company.If the contract is terminated and the status quo ante is restored,the transferee shall perform the obligation to return the equity if the equity can be returned,and the transferor shall return the money for the equity transfer and complete the registration of the change.If the original state of affairs cannot be restored,the issue of damages should be considered.Damages include two kinds of situations,One is the tort damages of the transferee against the transferor,and the other is the tort damages of the transferee against the company.