无权处分合同的效力、不安抗辩、解除及债务承担

Validity of Contract to Dispose Other Person's Properties, Suspense of Performance,Dissolution,and Undertaking of Debt

判决转让他人股权合同不因欠缺处分权而无效,判决要旨将之升华为普适性的结论,司法解释予以固定,至少存在六个方面的缺点。约定解除与法定解除并存时,虽然行使约定解除权的条件尚未成就,但在法定解除的条件具备时不妨行使法定解除权。在股权出让人已将股权移转给受让人的情况下,受让人拒绝付清余款,其根本原因在于双方共同开发房地产项目的目的不能实现,这不符合不安抗辩权的成立要件。在《承诺函》明确表示出具者向债权人承担偿还责任,却未言明免除债务人的债务的场合,不宜认定为成立了免责的债务承担。

There are at least six aspects of shortcomings to rule that the contract to dispose other person＇ s stock equity is valid, which is generalized by the gist of the judgment and fixed by the judicial interpretation. Such ruling and the relevant judicial interpretation not only have revised the provision of Article 51 of the Contract Law, but also have some defects in their logic. Moreover, in the prac- tice, this position will protect the transferees both in good faith and in bad faith, which is not very justified in its interest balance. There are also some circumstances in the practice where the object of the sale contract does not exist at all or the object is fabricated, which will not only do harm to the transaction security, but also lead to the borrowed prosperity or even economic crisis. And in the the- ory, such sale contracts are in short of agreement in the essence. Where the dissolution of the contract by consensus and by law are concurrent, although the agreed conditions under which a party may terminate the contract have not been satisfied, the party may still terminate the contract by law if the relevant conditions are satisfied. Where the transferor has transferred the stock equity to the transferee, the transferee cannot base his refusal to pay the residual payment on the right to suspense of performance, although the fundamental reason of the refusal lies in that the goal to develop the real estate project together by the parties to the contract cannot be real- ized. Where the commitment formulates definitely that the promisor will undertake the responsibility of repayment but doesn＇ t say clearly whether to release the debt of the debtor or not, it is improper to find that the debtor is released from the responsibility of repayment.