审批对国有股权转让合同效力的影响
发布时间：2019-05-06 17:13
【摘要】：国有股权转让是优化资源配置,调整产业机构,增强企业活力,巩固和发展国有经济的必然要求。随着国有企业改制重组步伐的加快,国家逐步放宽了对国有股权转让的限制,但是对于上市公司国有股权转让实行审批管理的方式,仍然会引发争议性的问题,例如陈发树与云南白药股权纠纷一案中一审法院认定股权转让合同有效,二审法院则认定合同不生效,最高法再审意见又认为合同未生效。实践中法院观点主要有合同有效和未生效两种观点。理论界对于未经审批国有股权转让合同效力主要有有效说、无效说和未生效说三种观点。法律对于未经审批的外商投资企业股权转让合同明确规定了未生效。而对于未经审批的国有股权转让合同效力没有做出明确的规定。国有股权转让合同是否需经审批才生效?如果应经审批,那审批机构是谁?审查内容是什么?现行立法和司法对于行政审批与合同效力的关系持何种态度?这些问题又引出我国现在的国有股权转让制度以及国有资产监督管理在体制机制方面存在的问题,这些问题需要给予高度重视。本文通过对相关理论、案例和法律法规的考察梳理,对行政审批对国有股权转让合同效力的影响等相关问题进行讨论,对未来民法典对行政审批与合同效力应持有的态度提出一些立法建议,并结合本文所讨论的案例就如何改进国有股权转让制度提出一些意见。本文由引言、正文和结语三部分组成,其中正文分为四个部分展开:第一部分通过对理论界学者们对行政审批与合同效力的观点、司法实践中法院对该问题的不同态度以及现行法中对该问题的态度进行梳理,对现行法律法规中所存在的问题进行反思,并对不同的学术观点进行比较分析,提出"行政行为要件说";最后对未来民法典对该问题的应然态度提出建议。第二部分结合具体的案例来分析行政审批对国有股权转让合同效力的影响,对二审法院判决的法律法规适用和审判逻辑提出质疑,并分析了相关主体的责任承担方式。第三部分笔者借助民法上相关理论来分析行政审批与国有股权转让合同效力的关系,主要有物债二分理论、《物权法》"区分原则"以及将上文提出"行政行为要件说"运用到具体的案件中,以检验其合理性和可行性。第四部分笔者对如何改进国有股权转让制度提出建议。
[Abstract]:The transfer of state-owned equity is an inevitable requirement to optimize the allocation of resources, adjust the industrial institutions, enhance the vitality of enterprises and consolidate and develop the state-owned economy. With the acceleration of the pace of restructuring and reorganization of state-owned enterprises, the state has gradually relaxed the restrictions on the transfer of state-owned shares, but the mode of examination and approval for the transfer of state-owned shares in listed companies will still lead to controversial issues. For example, in the case of the dispute between Chen Fa-Shu and Yunnan Baiyao, the court of first instance held that the contract of transfer of shares was valid, the court of second instance held that the contract was not effective, and the Supreme Law retrial opinion held that the contract was not effective. In practice, there are two main points of view: the validity of the contract and the non-entry into force of the contract. There are three views on the validity of the contract of transfer of state-owned equity without examination and approval, invalidity theory and non-effective theory. The law does not take effect on an unapproved contract for the transfer of shares in a foreign-invested enterprise. However, there is no clear regulation on the validity of the state-owned equity transfer contract without examination and approval. Does the contract for the transfer of state-owned shares need to be approved and approved before it becomes effective? If it should be approved, who is the approving authority? What is the review? What is the current legislative and judicial attitude towards the relationship between administrative examination and approval and the effectiveness of the contract? These problems lead to the problems existing in the system of state-owned equity transfer and the supervision and management of state-owned assets, which need to be paid great attention to. Through reviewing and combing the relevant theories, cases, laws and regulations, this paper discusses the influence of administrative examination and approval on the effectiveness of state-owned equity transfer contracts, and so on. This paper puts forward some legislative suggestions on the attitude of civil code to administrative examination and approval and contract validity in the future, and puts forward some suggestions on how to improve the system of state-owned equity transfer in combination with the cases discussed in this paper. This paper consists of three parts: introduction, text and conclusion, in which the main text is divided into four parts: the first part, through the theoretical scholars' views on administrative examination and approval and the effectiveness of the contract, In the judicial practice, the different attitudes of the court to the issue and the attitude of the current law to the issue are combed, the problems existing in the existing laws and regulations are reconsidered, and the different academic viewpoints are compared and analyzed. Put forward the theory of the elements of administrative conduct; Finally, it puts forward some suggestions on the attitude of the future civil code to this issue. The second part analyzes the influence of administrative examination and approval on the effectiveness of state-owned equity transfer contract, and challenges the application of laws and regulations and the logic of trial of the second instance court decision, and analyzes the responsibility-bearing mode of the related subjects. In the third part, the author analyzes the relationship between administrative examination and approval and the validity of state-owned equity transfer contract with the help of the relevant theory of civil law, which mainly includes the theory of property-debt dichotomy. In order to test its rationality and feasibility, "principle of distinction" and "elements of Administrative acts" put forward above are applied to concrete cases. In the fourth part, the author puts forward some suggestions on how to improve the state-owned equity transfer system.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
，
本文编号：2470351
[Abstract]:The transfer of state-owned equity is an inevitable requirement to optimize the allocation of resources, adjust the industrial institutions, enhance the vitality of enterprises and consolidate and develop the state-owned economy. With the acceleration of the pace of restructuring and reorganization of state-owned enterprises, the state has gradually relaxed the restrictions on the transfer of state-owned shares, but the mode of examination and approval for the transfer of state-owned shares in listed companies will still lead to controversial issues. For example, in the case of the dispute between Chen Fa-Shu and Yunnan Baiyao, the court of first instance held that the contract of transfer of shares was valid, the court of second instance held that the contract was not effective, and the Supreme Law retrial opinion held that the contract was not effective. In practice, there are two main points of view: the validity of the contract and the non-entry into force of the contract. There are three views on the validity of the contract of transfer of state-owned equity without examination and approval, invalidity theory and non-effective theory. The law does not take effect on an unapproved contract for the transfer of shares in a foreign-invested enterprise. However, there is no clear regulation on the validity of the state-owned equity transfer contract without examination and approval. Does the contract for the transfer of state-owned shares need to be approved and approved before it becomes effective? If it should be approved, who is the approving authority? What is the review? What is the current legislative and judicial attitude towards the relationship between administrative examination and approval and the effectiveness of the contract? These problems lead to the problems existing in the system of state-owned equity transfer and the supervision and management of state-owned assets, which need to be paid great attention to. Through reviewing and combing the relevant theories, cases, laws and regulations, this paper discusses the influence of administrative examination and approval on the effectiveness of state-owned equity transfer contracts, and so on. This paper puts forward some legislative suggestions on the attitude of civil code to administrative examination and approval and contract validity in the future, and puts forward some suggestions on how to improve the system of state-owned equity transfer in combination with the cases discussed in this paper. This paper consists of three parts: introduction, text and conclusion, in which the main text is divided into four parts: the first part, through the theoretical scholars' views on administrative examination and approval and the effectiveness of the contract, In the judicial practice, the different attitudes of the court to the issue and the attitude of the current law to the issue are combed, the problems existing in the existing laws and regulations are reconsidered, and the different academic viewpoints are compared and analyzed. Put forward the theory of the elements of administrative conduct; Finally, it puts forward some suggestions on the attitude of the future civil code to this issue. The second part analyzes the influence of administrative examination and approval on the effectiveness of state-owned equity transfer contract, and challenges the application of laws and regulations and the logic of trial of the second instance court decision, and analyzes the responsibility-bearing mode of the related subjects. In the third part, the author analyzes the relationship between administrative examination and approval and the validity of state-owned equity transfer contract with the help of the relevant theory of civil law, which mainly includes the theory of property-debt dichotomy. In order to test its rationality and feasibility, "principle of distinction" and "elements of Administrative acts" put forward above are applied to concrete cases. In the fourth part, the author puts forward some suggestions on how to improve the state-owned equity transfer system.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
，
本文编号：2470351
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