试论我国股东优先购买权制度的完善
发布时间：2018-12-15 05:28
【摘要】：股东设立公司之后,不可以随意抽回出资,所以股东如果要想退出公司,能选择的方式只有解散公司或者转让股权了。而解散公司面临的程序十分复杂,对社会经济的影响也比较大,所以转让股权成了股东退出公司最好的方式。股权的对外转让无疑会导致转让股东的退出和新股东的加入,从而影响股东之间的稳定合作关系和公司经营管理模式、运营状况等,所以就必须对股东对外转让股权作出限制,股东优先购买权制度就是其中的一种限制手段。本文共分为四个章节。 第一章是股东优先购买权的讨论范围。股权的对外转让包括正常转让和非正常转让。正常转让是指转让股东向股东以外的第三人发出转让股权的要约,然后双方协商股权转让的具体条件,履行各自的权利义务。非正常转让包括法院强制执行、股权的继承、夫妻共同财产的分割、新股的购买、股权的赠与等。本文只讨论股权的外部转让中的正常转让。 第二章讨论的是股东优先购买权的法律性质。某种权利的行使、效力、救济等等都与该权利的法律性质息息相关,界定股东优先购买权的法律性质意义重大。股东优先购买权是期待权、自益权、形成权。 第三章是股东优先购买权的价值基础和设立原则。股东优先购买权的价值表现在维护有限责任公司的人合性、保护股东的既得利益和合理预期、节约交易成本和促进经济运行效率、平衡各方当事人利益。它的设立原则主要是股东自治原则和安全效率平衡原则。 第四章是本文的重点章节,讨论的是我国股东优先购买权制度的进步和完善。2005年修订后的《公司法》无论是在指导思想方面还是在具体规定方面,都有了一定的改变和进步,但是对于日新月异的公司实践和司法审判来说,仍然存在很多缺陷。比如权利主体规定不明确、通知的事项表达不清、同等条件的模糊、缺乏部分行使问题的规定、行使期限的不明确、责任追究机制的缺失等,本文都对这些缺陷作了初步探讨,拟根据我国公司实践和司法审判,借鉴世界各国公司立法的相关规定,对我国股东优先购买权制度的完善给出自己的拙见。
[Abstract]:After the shareholders set up the company, they can't withdraw their capital at will, so if the shareholders want to withdraw from the company, the only way they can choose is to dissolve the company or transfer the shares. The procedure of dissolving the company is very complicated and has a great impact on the society and economy, so the transfer of equity becomes the best way for shareholders to withdraw from the company. The transfer of shares to foreign countries will undoubtedly lead to the withdrawal of transferring shareholders and the addition of new shareholders, thus affecting the stable cooperative relationship between shareholders, the mode of operation and management of the company, the operating conditions, and so on. Therefore, it is necessary to restrict the transfer of shares by shareholders to other countries. The system of shareholders' preemption right is one of the restrictive measures. This paper is divided into four chapters. The first chapter is the scope of discussion of shareholders' preemption right. Foreign equity transfer includes normal transfer and abnormal transfer. Normal transfer means that the shareholders of the transfer offer to the third party other than the shareholders, and then the two sides negotiate the specific conditions of the transfer of equity and fulfill their respective rights and obligations. Abnormal transfer includes court enforcement, equity inheritance, division of matrimonial property, purchase of new shares, donation of shares, etc. This article only discusses the normal transfer in the external transfer of equity. The second chapter discusses the legal nature of shareholders' preemption right. The exercise, effect, relief and so on of certain rights are closely related to the legal nature of the right. It is of great significance to define the legal nature of the right of shareholders' preemption. Shareholders' preemption right is the right of expectation, right of self-interest and right of formation. The third chapter is the value basis and establishment principle of shareholder's preemption right. The value of shareholders' preemption rights lies in maintaining the human harmony of limited liability companies, protecting the vested interests and reasonable expectations of shareholders, saving transaction costs and promoting economic operation efficiency, and balancing the interests of all parties concerned. Its establishment principle is mainly the principle of shareholder autonomy and the principle of balance of safety and efficiency. The fourth chapter is the key chapter of this paper, which discusses the progress and perfection of the system of shareholders' preemption right in China. The revised Company Law in 2005 has made some changes and progress in both the guiding ideology and the specific provisions. However, there are still many defects in the company practice and judicial trial. For example, the provisions of the main body of rights are not clear, the matters of notification are not clearly expressed, the same conditions are vague, the provisions of partial exercise problems are lacking, the duration of exercise is not clear, the mechanism of accountability is not clear, and so on. This article has made a preliminary discussion on these defects. According to the company practice and judicial trial in our country and the relevant provisions of the company legislation in the world, the author gives his own views on the perfection of the system of the shareholders' preemption right in our country.
【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
[Abstract]:After the shareholders set up the company, they can't withdraw their capital at will, so if the shareholders want to withdraw from the company, the only way they can choose is to dissolve the company or transfer the shares. The procedure of dissolving the company is very complicated and has a great impact on the society and economy, so the transfer of equity becomes the best way for shareholders to withdraw from the company. The transfer of shares to foreign countries will undoubtedly lead to the withdrawal of transferring shareholders and the addition of new shareholders, thus affecting the stable cooperative relationship between shareholders, the mode of operation and management of the company, the operating conditions, and so on. Therefore, it is necessary to restrict the transfer of shares by shareholders to other countries. The system of shareholders' preemption right is one of the restrictive measures. This paper is divided into four chapters. The first chapter is the scope of discussion of shareholders' preemption right. Foreign equity transfer includes normal transfer and abnormal transfer. Normal transfer means that the shareholders of the transfer offer to the third party other than the shareholders, and then the two sides negotiate the specific conditions of the transfer of equity and fulfill their respective rights and obligations. Abnormal transfer includes court enforcement, equity inheritance, division of matrimonial property, purchase of new shares, donation of shares, etc. This article only discusses the normal transfer in the external transfer of equity. The second chapter discusses the legal nature of shareholders' preemption right. The exercise, effect, relief and so on of certain rights are closely related to the legal nature of the right. It is of great significance to define the legal nature of the right of shareholders' preemption. Shareholders' preemption right is the right of expectation, right of self-interest and right of formation. The third chapter is the value basis and establishment principle of shareholder's preemption right. The value of shareholders' preemption rights lies in maintaining the human harmony of limited liability companies, protecting the vested interests and reasonable expectations of shareholders, saving transaction costs and promoting economic operation efficiency, and balancing the interests of all parties concerned. Its establishment principle is mainly the principle of shareholder autonomy and the principle of balance of safety and efficiency. The fourth chapter is the key chapter of this paper, which discusses the progress and perfection of the system of shareholders' preemption right in China. The revised Company Law in 2005 has made some changes and progress in both the guiding ideology and the specific provisions. However, there are still many defects in the company practice and judicial trial. For example, the provisions of the main body of rights are not clear, the matters of notification are not clearly expressed, the same conditions are vague, the provisions of partial exercise problems are lacking, the duration of exercise is not clear, the mechanism of accountability is not clear, and so on. This article has made a preliminary discussion on these defects. According to the company practice and judicial trial in our country and the relevant provisions of the company legislation in the world, the author gives his own views on the perfection of the system of the shareholders' preemption right in our country.
【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
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