China: 学习笔记 | 刘贵祥在全国法院民商事审判工作会议上的讲话要点摘录

Last Updated: 12 August 2019
Article by Meng Ice

2019年7月3日,全国法院民商事审判工作会议在哈尔滨召开,最高人民法院党组书记、院长周强出席会议并讲话。最高人民法院审判委员会专职委员刘贵祥在会上就如何贯彻落实好周强院长讲话精神以及当前民商事审判的一些热点问题进行了发言,干货满满,使人受益匪浅。

  刘贵祥委员的发言内容丰富,针对当前热点的关于合同效力、新旧法关系、公司对外担保、公司清算责任、金融借贷与民间借贷、股权让与担保、案外人救济以及刑民交叉等问题做了相应的解读。因原文篇幅较长,我对部分实务内容做了学习笔记,与大家分享。需说明的是,为简单易记,笔记用语欠规范严谨,但业内人士应不会发生歧义。

  1、违反规章、监管政策不认为合同无效,导致违反公共秩序的才无效。此类无效应从严限制,并充分说理。

  2、审理对赌协议时,要考虑各方利益平衡。

  3、审理融资性买卖时,要有穿透式思维,主动追加相关当事人。

  4、法院审案也要进行类案检索,力争同案同判。

  5、民法总则与合同法总则不是一般法与特别法的关系,而是新法与旧法关系,有冲突,适用民法总则;民法总则与合同法分则是一般法与特别法关系,有冲突,适用合同法。

  6、民法总则重要变化之一:可变更合同不再适用,只有可撤销。

  7、民法总则重要变化之二:"以合法形式掩盖非法目的"被"虚伪意思表示中的隐藏行为"代替,前者无效,后者可能有效。

  8、民法总则重要变化之三:第三人实施欺诈、胁迫行为的,也可撤销合同。

  9、民法总则重要变化之四:乘人之危不再适用,只有显失公平。

  10、民法总则与公司法是一般法与特别法关系,有冲突,适用公司法。但民法总则有新增内容,从其规定。如公司决议被撤销,但公司依决议与善意相对方形成的法律关系不受影响。

  11、合同需报批才生效,义务人不报批,相对人不能诉请履行合同或承担合同约定的违约责任。而应诉请对方履行报批义务,判决后仍不履行的,再另诉赔偿损失,可以包括期得利益损失。

  12、法院可主动认定合同无效,但不能主动撤销合同。撤销合同必须经当事人请求(抗辩也算)。

  13、假公章合同的审查重点,不在公章真假,而要基于盖章人在盖章时是否有代表权或代理权,来判断合同效力。

  14、合同无效,不能使不诚信一方因合同无效而获益。

  15、公司章程规定董事会无权决议对外担保,但章程规定不能对抗善意相对人,相对人可基于表见代表主张合同有效。但也不绝对,需具体分析(分析内容太多,详见原文)。

  16、相对人尽到审查义务,不因决议系伪造、程序违法、签章不实、超标担保而导致担保无效。

  17、担保无效,行为人担责。原告不能证明谁是行为人的,驳回诉讼请求。

  18、对股东、高管怠于履行清算义务而对公司债务承担连带责任,要从严把握。一是未清算是由于控股股东原因、自己未参与经营、未管理帐册的,不构成。二是即使怠于清算,但与财产、帐册灭失没有因果关系的,不承担。三是要适用诉讼时效。

  19、金融借贷不适用民间借贷的利率标准。

  20、非借款合同项下的付款义务,不能以民间借贷利率上限作为违约金是否过高的的标准,而应以银行利率为基础。

  21、民间借贷案件,除审查借据、欠条等,还要结合款项来源、交易习惯、经济能力、相互关系等综合判断是否套路贷。

  22、股权让与担保有效。但应理解为清算型让与担保,权利人有优先受偿权。

  23、股权让与担保的股权受让人的债权人,可以主张执行其股权,转让人可以请求确权,也可以提起执行异议之诉。

  24、第三人撤销之诉的原告资格,如果是基于物权、股权等绝对权的,可以;如果是基于债权的,一般不允许,除非其债权撤销权因当事人在诉讼中和解而导致合同不能被撤销。

  25、民刑交叉案件中,民事和刑事必须涉及"同一事实",才能通过刑事解决。如果法定代表人、负责人、员工犯罪,但法人本身不构成犯罪,属于犯罪主体和民事主体不是同一主体,不宜认定为"同一事实"。

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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