摘要
VIE协议控制架构利用我国相关监管法律法规尚不完善的条件,企图巧妙地规避相关部门的监管,但是VIE协议控制架构并非无懈可击,原因在于当事人虽然通过VIE协议所搭建的协议控制架构未必会因为违反法律、行政法规的强制性规定而被判无效,但非常可能因符合合同法关于合法形式掩盖非法目的的特征而被审批机关认定为无效。因此,建议相关主管机关应当尽快通过立法明确VIE协议控制行为的法律范畴,并明确其适用的范围,建立境内监管机构与境外监管机构沟通机制,这样,才能将VIE协议控制机构纳入法律监管范围。
＂VIE approach＂ takes advantage of the incomplete feature of China＇s existing laws and regulations in this field and attempts to deliberately evade the regulation by relevant PRC authorities.However,based on the analysis of this essay,the writer clarifies that VIE approach is not perfect.The reason is that for the contract control structure（＂VIE structure＂） established by VIE agreements, although the probability of such structure being determined to be void due to its breach of compulsory requirements of PRC laws and regulations is remote,it is very likely that it may be determined void by relevant examination and approval authorities based on the fact that VIE agreements fall into the category of contracts which manipulate lawful forms to hide its illegal purposes. Meanwhile,writer suggest that the relevant authorities shall confirm the legal definition of＂VIE approach＂,and clarify the scope which it applies to as soon as possible.The PRC and overseas relevant authorities shall establish the communication system to put the ＂VIE approach＂ under the regulation.
出处
《行政与法》
2013年第5期119-125,共7页
Administration and Law
