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外商投资企业股权转让之特殊性在于股权转让合同之生效必须经过行政审批,并且规定未经审批的合同无效,这导致了实践中股权转让僵局现象的大量出现。为了破解上述僵局,学界采用扩大解释,将未经审批的合同解释为成立但未生效的合同,并课以过错方承担损害赔偿责任。2010年8月16日,最高人民法院公布实施的《关于审理外商投资企业纠纷案件若干问题的规定(一)》尝试解决僵局下的股权转让合同继续履行以及受让方预期利益保护的问题,并提出了共同报批和自行报批两种解决途径,但是通过文章分析发现这两种途径都存在适用上的局限性,上述僵局现象并不能得到有效解决。最终,笔者认为要破解上述僵局应当采用立法措施,并建议考虑废除外商投资企业法中的股权转让审批制度。
The particularity of the equity transfer of a foreign-invested enterprise lies in the fact that the validity of the equity transfer contract must go through administrative examination and approval and the stipulation of the non-vetted contract is invalid, which leads to the appearance of the phenomenon of impasse in the share transfer in practice. In order to solve the above impasse, the academic community adopts an expanded explanation to explain the non-vetted contract as a contract that has been set up but does not take effect, and that fault liability should be borne by the wrong party. On August 16, 2010, the Supreme People’s Court promulgated and implemented the “Provisions on Several Issues Concerning the Dispute Cases of Foreign-invested Enterprises (I)” and tried to solve the problem of the continued performance of the equity transfer contract under the deadlock and the expected interests protection of the transferee. Put forward two solutions for joint approval and self-approval, but through the analysis of the article found that both approaches have their own limitations, and the above impasse can not be effectively solved. Finally, I think we should adopt legislative measures to solve the impasse above and suggest that we consider abolishing the examination and approval system of equity transfer in the Law of Foreign Investment Enterprises.