吉林省白城市吉鹤宾馆产权转让纠纷案评析
发布时间：2018-07-24 11:10
【摘要】：国有企业改制是我国目前最重要改革之一。国企改制可以充分发挥私有资本的力量，带动国家经济发展。 市场经济中存在着各种交易行为，其交易主体也多种多样，而作为主要行政主体的政府在参与市场合同交易时，由于其身份的双重性，极易造成单方的合同违约行为出现，从而使相对方的信赖利益遭受损失。信赖作为诚实信用原则的核心价值，是市场双方合同履约的前提与基础。作为管理社会主体的政府，违背信赖利益的现象十分普遍。 作者通过梳理白城市吉鹤宾馆的产权转让这一案例，即白城市市直机关管理局为实现直属白城宾馆的市场化运作而签订了股权转让合同，并由此实施了一系列旨在推进股权转让的合法政府行为，但在合同履行过程中，却拒不履行双方约定，由此而产生纠纷。本文从国企改制中存在的主体认定、合同效力、违约责任是否成立，以及损害赔偿的计算方式等问题进行了分析和讨论。 笔者深入分析了双方签订的合同行为是否有效。这直接关系到作为合同一方的政府在不履行合同后，造成的信赖利益损失是否存在。根据《合同法》，，笔者从签订合同的主体方面是否符合适合，签订合同的意思表示的有效性，关于合同买卖的标的是否符合法律以及国家的政策，以及合同拟定、签订过程中是否有存在不符合法律规定致使合同无效的情形存在，最后探究了一方在履行合同主要约定义务的情形下，政府拒不履行合同的行为表现。通过以上层层分析，认定了在本合同中，政府违背了诚实信用原则，给相对方造成了信赖利益损失。 笔者还分析了在违约损害赔偿的计算方面，转让方应赔偿因其违约行为给受让方造成的全部损失，包括该合同书履行后受让方可以获得的吉鹤宾馆的资产增值利益及合理的经营利润。
[Abstract]:The reform of state-owned enterprises is one of the most important reforms in our country. The reform of state-owned enterprises can give full play to the power of private capital and drive the country's economic development. In the market economy, there are a variety of transaction behaviors, and the government, as the main administrative subject, in participating in the market contract transaction, because of its dual identity, it is easy to cause unilateral contract breach of contract behavior. As a result, the relative side of the trust interests suffered losses. As the core value of the principle of good faith, trust is the premise and foundation of contract performance. As the main body of the management society, the government violates the trust interest phenomenon is very common. Through combing the case of property right transfer of Jihe Hotel in Baicheng City, that is, the Baicheng Municipal Bureau of Government has signed a contract for the transfer of shares in order to realize the market-oriented operation of Baicheng Hotel directly under it. Therefore, a series of legal government actions aimed at promoting equity transfer have been carried out, but in the process of performing the contract, they have refused to fulfill the agreement of both parties, thus resulting in disputes. This paper analyzes and discusses the main body determination, contract validity, liability for breach of contract and the calculation method of damages in the reform of state-owned enterprises. The author deeply analyzes whether the contract behavior signed by both parties is effective. This is directly related to the loss of trust interest caused by the government as a party to the contract after failure to perform the contract. According to the contract Law, the author, in terms of whether the subject of the contract is suitable, the validity of the expression of intention of signing the contract, whether the subject matter of the contract is in conformity with the law and the state policy, and the contract drafting, In the process of signing, whether there exists the situation that the contract is invalid due to non-conformity with the law, at last, the author probes into the behavior of the government refusing to perform the contract under the circumstance of performing the main contractual obligations of one party. Through the above analysis, it is concluded that in this contract, the government has violated the principle of good faith and caused the loss of trust interest to the opposite party. The author also analyzes the calculation of damages for breach of contract, the transferee should compensate all the losses caused to the transferee due to its breach of contract. Including the contract after the performance of the transfer party may obtain the value-added benefits of the hotel and reasonable operating profits.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6
本文编号：2141188
[Abstract]:The reform of state-owned enterprises is one of the most important reforms in our country. The reform of state-owned enterprises can give full play to the power of private capital and drive the country's economic development. In the market economy, there are a variety of transaction behaviors, and the government, as the main administrative subject, in participating in the market contract transaction, because of its dual identity, it is easy to cause unilateral contract breach of contract behavior. As a result, the relative side of the trust interests suffered losses. As the core value of the principle of good faith, trust is the premise and foundation of contract performance. As the main body of the management society, the government violates the trust interest phenomenon is very common. Through combing the case of property right transfer of Jihe Hotel in Baicheng City, that is, the Baicheng Municipal Bureau of Government has signed a contract for the transfer of shares in order to realize the market-oriented operation of Baicheng Hotel directly under it. Therefore, a series of legal government actions aimed at promoting equity transfer have been carried out, but in the process of performing the contract, they have refused to fulfill the agreement of both parties, thus resulting in disputes. This paper analyzes and discusses the main body determination, contract validity, liability for breach of contract and the calculation method of damages in the reform of state-owned enterprises. The author deeply analyzes whether the contract behavior signed by both parties is effective. This is directly related to the loss of trust interest caused by the government as a party to the contract after failure to perform the contract. According to the contract Law, the author, in terms of whether the subject of the contract is suitable, the validity of the expression of intention of signing the contract, whether the subject matter of the contract is in conformity with the law and the state policy, and the contract drafting, In the process of signing, whether there exists the situation that the contract is invalid due to non-conformity with the law, at last, the author probes into the behavior of the government refusing to perform the contract under the circumstance of performing the main contractual obligations of one party. Through the above analysis, it is concluded that in this contract, the government has violated the principle of good faith and caused the loss of trust interest to the opposite party. The author also analyzes the calculation of damages for breach of contract, the transferee should compensate all the losses caused to the transferee due to its breach of contract. Including the contract after the performance of the transfer party may obtain the value-added benefits of the hotel and reasonable operating profits.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6
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本文编号：2141188
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