论有限责任公司股东优先购买权的行使问题
发布时间：2018-11-10 20:31
【摘要】：有限责任公司,可以说是出于对股份公司与合伙企业这两种企业形态的制度缺陷进行弥补的目的产生的一种别具特色的公司形态,兼有资合性和人合性,这一双重特性决定了股权转让必须受到一定的限制,在保障股权自由转让的基础上兼顾对有限责任公司的人合性基础的保护,进而实现股东预期的维护公司稳定的运营秩序的愿望。对此,世界上大部分国家通行的做法是采取赋予股东优先购买权的方式,通过其制度价值的发挥,平衡股权的流动性、公司的人合性与交易的安全性三者之间的价值冲突。然而,随着市场经济的不断深化及现代公司制度的日益完善,在资源配置日益市场化的趋势下,有限责任公司的股权转让行为变得越发普遍和频繁,随之产生的纠纷也与日俱增,尤其是股东优先购买权的切实行使问题愈发突出。因此,从有效保障股东的合法权益与合理预期方面考虑,折射出对股东优先购买权制度进行深入而理性的探讨的必要性,希望能寻求得到相对合理的解决方案用以保障股东优先购买权制度价值的充分发挥。 在我国,公司法自1993年实施以来历经三次修改,2005年修订的《公司法》明文规定了股东优先购买权,但对于这一权利的具体行使问题却规定得过于粗糙,明显缺乏可操作性;但在学术界,国内外对于股东优先购买权的理论研究已进行得如火如荼并取得了重要的研究成果,很多国家在此基础上进行的立法实践也取得了显著的社会效果,对我国具有重要的借鉴意义。 本文以股东的优先购买权为核心论题,在分析国内外先进的立法经验的基础上,对我国的股东优先购买权的性质、行使、法律保护等重要理论与实践问题进行重点分析,希望在此基础上明确个人观点、提出独特见解。
[Abstract]:Limited liability company, can be said to be out of the joint-stock company and partnership enterprises to make up for the institutional defects of the two forms of the purpose of a unique corporate form, both capital and human nature, This dual characteristic determines that the transfer of shares must be restricted to a certain extent, and on the basis of guaranteeing the free transfer of equity, the protection of the interpersonal basis of limited liability companies should be taken into account. And then realize the desire of shareholders to maintain the stable operation order of the company. To this end, most of the countries in the world adopt the way of giving priority to shareholders, balance the liquidity of stock right, the value conflict of the company and the security of transaction through the exertion of its system value. However, with the deepening of the market economy and the improvement of the modern company system, under the trend of the increasingly market-oriented allocation of resources, the transfer of stock rights of limited liability companies has become more and more common and frequent. The resulting disputes are also increasing, especially the practical exercise of shareholders' preemption rights is becoming more and more prominent. Therefore, considering the effective protection of the legitimate rights and interests of shareholders and reasonable expectations, it reflects the necessity of a deep and rational discussion on the system of shareholders' preemption rights. We hope to find a relatively reasonable solution to ensure the full value of shareholders' priority right. In our country, the Company Law has been revised three times since its implementation in 1993. The Company Law amended in 2005 explicitly stipulates the right of shareholders' preemption, but the specific exercise of this right is too rough and obviously lack of maneuverability. However, in academic circles, the theoretical research on shareholders' preemption right has been carried out in full swing at home and abroad, and important research results have been obtained, and many countries' legislative practice on this basis has also achieved remarkable social effects. It has important reference significance to our country. Based on the analysis of the advanced legislative experience at home and abroad, this paper focuses on the theoretical and practical issues of the nature, exercise and legal protection of the prior purchase right of shareholders in China, taking the priority right of shareholders as the core topic, and on the basis of analyzing the advanced legislative experience at home and abroad. Hope that on this basis clear personal views, put forward unique views.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2323539
[Abstract]:Limited liability company, can be said to be out of the joint-stock company and partnership enterprises to make up for the institutional defects of the two forms of the purpose of a unique corporate form, both capital and human nature, This dual characteristic determines that the transfer of shares must be restricted to a certain extent, and on the basis of guaranteeing the free transfer of equity, the protection of the interpersonal basis of limited liability companies should be taken into account. And then realize the desire of shareholders to maintain the stable operation order of the company. To this end, most of the countries in the world adopt the way of giving priority to shareholders, balance the liquidity of stock right, the value conflict of the company and the security of transaction through the exertion of its system value. However, with the deepening of the market economy and the improvement of the modern company system, under the trend of the increasingly market-oriented allocation of resources, the transfer of stock rights of limited liability companies has become more and more common and frequent. The resulting disputes are also increasing, especially the practical exercise of shareholders' preemption rights is becoming more and more prominent. Therefore, considering the effective protection of the legitimate rights and interests of shareholders and reasonable expectations, it reflects the necessity of a deep and rational discussion on the system of shareholders' preemption rights. We hope to find a relatively reasonable solution to ensure the full value of shareholders' priority right. In our country, the Company Law has been revised three times since its implementation in 1993. The Company Law amended in 2005 explicitly stipulates the right of shareholders' preemption, but the specific exercise of this right is too rough and obviously lack of maneuverability. However, in academic circles, the theoretical research on shareholders' preemption right has been carried out in full swing at home and abroad, and important research results have been obtained, and many countries' legislative practice on this basis has also achieved remarkable social effects. It has important reference significance to our country. Based on the analysis of the advanced legislative experience at home and abroad, this paper focuses on the theoretical and practical issues of the nature, exercise and legal protection of the prior purchase right of shareholders in China, taking the priority right of shareholders as the core topic, and on the basis of analyzing the advanced legislative experience at home and abroad. Hope that on this basis clear personal views, put forward unique views.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
【引证文献】
相关硕士学位论文 前1条
1 叶萍;论有限责任公司股东优先购买权制度[D];吉林大学;2013年
，本文编号：2323539
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