股份转让章程设限研究
发布时间：2019-05-19 17:00
【摘要】：章程自治是公司治理中的重要内容,公司为了将股份流动限制在其掌控范围内,会在公司章程或者通过股东协议的形式对股份转让进行限制。实践中不仅有限责任公司在章程中对股权转让设限,有些股份有限公司为实现特定目的也对股份转让在章程中作一定限制。检索相关案例发现大致可将限制条款分为以下几类:1、禁止股份转让或者强制股份转让。2、限制受让人资格。3、限制转让时间。4、限制转让份额及其他限制。对于股份有限公司章程能否对股份转让限制这一问题,学界有着不同观点,大体有以下观点:一是无效说。此观点认为股份转让自由原则不能够被突破,公司章程对股份转让的限制是无效的。二是普通的股份公司章程对股份转让不得限制,但是特殊行业股份公司除外,如对股东有特定要求的银行、证券等行业。三是股份转让自由仅为公司法原则性规定,公司可以通过章程或者股东协议等形式作出规定。四是不同开放程度的股份公司应区别处理。尽管现在更多人认为应当承认股份有限公司股份转让的章程设限效力,但是有质疑观点认为,在没有充分理由证明现行法存在错误的情况下,股份有限公司制度的设计仍是建立在鼓励资本自由流动的基础,在现行公司法没有作出进一步细分的时,如果公司自治限制了资本的自由流动,那么这种自治是不符合公司法立法精神的,更是有碍交易的安全性,因此,不应当肯定这种限制。非上市股份公司章程限制股份转让问题引起讨论最直观的原因就是公司法所安排相应制度的不完善,根据我国公司法的规定,公司分为有限责任公司和股份有限公司,尽管对于上市公司做了特殊规定,但在此框架下,不同类型的非上市股份公司几乎适用一样的公司法规定,这便导致实务中对章程限制股份转让的正当性有着不同观点。在我国现在法律框架内,公司类型的划分及相应制度的设计所产生的问题很多,因此学界一直有对我国公司类型进行改革的声音。随着非上市公众公司概念的提出及其股份转让制度的建设,非上市公众公司的股份转让渠道有了保障,其公开性也逐渐体现出来。但是非上市非公众公司的公开性仍然没有体现,其与上市公司和非上市公众公司的区别也愈发明显,而法律对于非上市非公众公司的特别规定也基本没有。无论是因何种原因形成的非上市公众公司,其公众性特征决定了其不具有人合性质,这点不同于有限责任公司,就是说非上市公众公司的股东之间很大程度上是资本的联合,股东之间不是以信任为基础的合作关系,其基础在于资本,具有资合性质。非上市非公众公司属于股份有限公司,其与有限责任公司适用不同的公司法规则。但是,非上市非公众有限公司与有限责任公司的差异越来越小,具有相对较高的人合性特征。“股份依法转让”的公司法条款性质及其所包含的“股份自由转让”原则的地位对章程限制股份转让的认定起着重要作用。因法律没有直接规定包括非上市股份公司在内的股份公司是否可以利用章程限制股份转让,争议的解决需基于公司法性质的界定、公司章程自治的界限等理论问题的讨论。对于公司法的性质存在争议,主要有强行法说、任意法说和综合说三种观点。现在综合说,也就是认为公司法中既有强行性也有任意性的规定为通说。公司法寻求的就是在自治与管制之间取得平衡,我国公司法中“股份转让自由”的原则应被视为不可违背的规定有着争议,本文所持观点为股份转让自由只是原则性的规定,在人合性较强的非上市股份公司股份转让中仍应以当事人的自由约定为先。认为法律规定了公司经营的各个方面并仅以法律为准来经营公司的想法是不切合实际的。可以说,法律只能算是影响公司行为的一个因素并且在许多时候是并不重要的一个因素。从这个角度来看,公司运营的核心仍然是包括公司章程在内的公司参与者制定的相关文件而非公司法律规范,只是在特定情形下公司章程不可以违反法律的规定,即公司章程不能够突破公司强制性规范。非上市股份公司章程限制股份转让的效力应当区分公众公司与非公众公司、初始章程与章程修订案、程序性限制与实体权利限制等分别认定。具体来说,非上市公众公司章程限制股份转让的效力以无效为原则,特定情况下有效;非上市非公众公司章程限制股份转让的效力以有效为原则,无效为例外。初始章程限制股份转让原则上应认定为有效,章程修正案作出的限制应根据具体情形作出认定。章程限制应当有限度,即不可以剥夺股东股份转让的权利,在对股份转让程序性的限制可以认定为有效。
[Abstract]:The autonomy of the articles of association is an important part of the corporate governance. In order to restrict the flow of the shares within its control, the company may limit the transfer of the shares in the articles of association or in the form of a shareholder agreement. In practice, not only is the limited liability company limited to the equity transfer in the Articles of Association, and some of the limited liability companies also make certain restrictions on the transfer of the shares in the Articles of Association for the purpose of realizing the specific purpose. The search-related case found that the restrictions may be divided into the following categories:1, the prohibition of the transfer of shares or the forced transfer of shares,2, the restriction of the assignee's qualifications,3, the restriction of the transfer time,4, the limitation of the share of the transfer and other restrictions. There are different views on whether the Articles of Association of the Co., Ltd. can limit the transfer of shares, and there are different views in the academic field. The view was that the principle of free transfer of shares could not be breached, and the restrictions on the transfer of shares in the articles of association were not valid. The second is that the ordinary joint-stock company's articles of association shall not be limited to the transfer of the shares, except for special-purpose stock companies, such as banks, securities and other industries where the shareholders have specific requirements. Third, the freedom of transfer of the shares is only the principle of the Company Law, and the Company may make provisions in the form of the Articles of Association or the Shareholders Agreement. 4. The joint-stock companies with different degrees of openness shall be different from each other. in that view of the view that, in the absence of sufficient reason to justify the existence of an error in the current law, the design of the stock limited company is still the basis for encouraging the free flow of capital, In the absence of further sub-division in the current company law, if the self-government of the company limits the free flow of the capital, such autonomy is not in conformity with the legislative spirit of the company law, but also the security of the transaction, so this limitation should not be affirmed. The most direct reason for the discussion on the limitation of the transfer of shares by the Articles of Association of the non-listed company is the imperfect of the corresponding system under the Company Law. In accordance with the provisions of the Company Law of our country, the company is divided into limited liability company and limited liability company. In this framework, however, different types of non-listed joint-stock companies apply almost the same company law, which leads to different views on the legitimacy of the regulation of the transfer of shares in the practice. In the present legal framework of our country, the division of the company type and the problems of the design of the corresponding system have many problems, so the academic circle has always been the sound of the reform of our company type. With the introduction of the concept of non-public-public companies and the construction of its share transfer system, the transfer of shares of non-public-listed companies is guaranteed, and its openness is gradually reflected. However, the openness of the non-public non-public companies is still not reflected, and the difference between the non-public companies and the non-public companies is becoming more obvious, and the law of the non-public non-public companies is basically not. Regardless of the reason for which the non-public-listed public company is formed, its public character determines that it does not have a human-to-character nature, which is different from that of a limited liability company, that is to say, that the shareholders of the non-listed public company are largely capital-bound, The relationship between shareholders is not based on trust, and its foundation lies in the capital and the nature of the joint. The non-public non-public company is a joint stock limited company, which applies different company law rules with the limited liability company. However, the difference between the non-public non-public limited company and the limited liability company is becoming smaller and smaller, and has relatively high heterozygosity characteristics. The nature of the legal provisions of the Company Law and the principle of the free transfer of the shares contained therein play an important role in the determination of the transfer of shares in the Articles of Association. Because the law does not directly specify whether the joint-stock company, including the non-listed company, can use the articles of association to limit the transfer of shares, the settlement of the dispute shall be based on the definition of the nature of the company law, the limit of the autonomy of the company's articles of association and so on. There is a dispute about the nature of the company law. Now, it is also said that the company law has both the strong and the arbitrariness. The company law seeks to balance between self-government and control. The principle of the "free transfer of shares" in the Company Law of our country should be regarded as a non-derogable provision. The view of this paper is that the freedom of the transfer of the shares is only the principle of principle. In the transfer of a non-listed joint stock with a higher heterozygosity, the party's freedom of consent should be the first. It is not practical to think that the law sets out all aspects of the operation of the company and operates the company only on the basis of the law. It can be said that the law can only be a factor that affects the company's behavior and is not an important factor in many times. From this point of view, the core of the operation of the company is still the relevant documents developed by the company participants, including the articles of association, rather than the company's legal norm, except that the articles of association in the specific circumstances do not violate the provisions of the law, that is, the articles of association cannot break through the mandatory specifications of the company. The validity of the Articles of Association of the non-listed company shall distinguish between the public and the non-public companies, the initial articles of association and the amendment of the Articles of Association, the procedural restrictions and the restrictions on the rights of the entity, etc. In particular, the non-public articles of association limit the effectiveness of the transfer of shares to be null and void and, in particular cases, be valid; the non-public articles of association of the non-public non-public articles of association limit the effectiveness of the transfer of shares to be effective as a principle, with no exception. The initial Articles of Association shall, in principle, be deemed to be valid, and the limitation of the amendment to the Articles of Association shall be determined in accordance with the specific circumstances. The limitation of the Articles of Association should be limited, that is, the right to transfer of the shares of the shareholders may not be denied, and the restriction on the procedure for the transfer of the shares may be deemed to be valid.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.291.91
，
本文编号：2480897
[Abstract]:The autonomy of the articles of association is an important part of the corporate governance. In order to restrict the flow of the shares within its control, the company may limit the transfer of the shares in the articles of association or in the form of a shareholder agreement. In practice, not only is the limited liability company limited to the equity transfer in the Articles of Association, and some of the limited liability companies also make certain restrictions on the transfer of the shares in the Articles of Association for the purpose of realizing the specific purpose. The search-related case found that the restrictions may be divided into the following categories:1, the prohibition of the transfer of shares or the forced transfer of shares,2, the restriction of the assignee's qualifications,3, the restriction of the transfer time,4, the limitation of the share of the transfer and other restrictions. There are different views on whether the Articles of Association of the Co., Ltd. can limit the transfer of shares, and there are different views in the academic field. The view was that the principle of free transfer of shares could not be breached, and the restrictions on the transfer of shares in the articles of association were not valid. The second is that the ordinary joint-stock company's articles of association shall not be limited to the transfer of the shares, except for special-purpose stock companies, such as banks, securities and other industries where the shareholders have specific requirements. Third, the freedom of transfer of the shares is only the principle of the Company Law, and the Company may make provisions in the form of the Articles of Association or the Shareholders Agreement. 4. The joint-stock companies with different degrees of openness shall be different from each other. in that view of the view that, in the absence of sufficient reason to justify the existence of an error in the current law, the design of the stock limited company is still the basis for encouraging the free flow of capital, In the absence of further sub-division in the current company law, if the self-government of the company limits the free flow of the capital, such autonomy is not in conformity with the legislative spirit of the company law, but also the security of the transaction, so this limitation should not be affirmed. The most direct reason for the discussion on the limitation of the transfer of shares by the Articles of Association of the non-listed company is the imperfect of the corresponding system under the Company Law. In accordance with the provisions of the Company Law of our country, the company is divided into limited liability company and limited liability company. In this framework, however, different types of non-listed joint-stock companies apply almost the same company law, which leads to different views on the legitimacy of the regulation of the transfer of shares in the practice. In the present legal framework of our country, the division of the company type and the problems of the design of the corresponding system have many problems, so the academic circle has always been the sound of the reform of our company type. With the introduction of the concept of non-public-public companies and the construction of its share transfer system, the transfer of shares of non-public-listed companies is guaranteed, and its openness is gradually reflected. However, the openness of the non-public non-public companies is still not reflected, and the difference between the non-public companies and the non-public companies is becoming more obvious, and the law of the non-public non-public companies is basically not. Regardless of the reason for which the non-public-listed public company is formed, its public character determines that it does not have a human-to-character nature, which is different from that of a limited liability company, that is to say, that the shareholders of the non-listed public company are largely capital-bound, The relationship between shareholders is not based on trust, and its foundation lies in the capital and the nature of the joint. The non-public non-public company is a joint stock limited company, which applies different company law rules with the limited liability company. However, the difference between the non-public non-public limited company and the limited liability company is becoming smaller and smaller, and has relatively high heterozygosity characteristics. The nature of the legal provisions of the Company Law and the principle of the free transfer of the shares contained therein play an important role in the determination of the transfer of shares in the Articles of Association. Because the law does not directly specify whether the joint-stock company, including the non-listed company, can use the articles of association to limit the transfer of shares, the settlement of the dispute shall be based on the definition of the nature of the company law, the limit of the autonomy of the company's articles of association and so on. There is a dispute about the nature of the company law. Now, it is also said that the company law has both the strong and the arbitrariness. The company law seeks to balance between self-government and control. The principle of the "free transfer of shares" in the Company Law of our country should be regarded as a non-derogable provision. The view of this paper is that the freedom of the transfer of the shares is only the principle of principle. In the transfer of a non-listed joint stock with a higher heterozygosity, the party's freedom of consent should be the first. It is not practical to think that the law sets out all aspects of the operation of the company and operates the company only on the basis of the law. It can be said that the law can only be a factor that affects the company's behavior and is not an important factor in many times. From this point of view, the core of the operation of the company is still the relevant documents developed by the company participants, including the articles of association, rather than the company's legal norm, except that the articles of association in the specific circumstances do not violate the provisions of the law, that is, the articles of association cannot break through the mandatory specifications of the company. The validity of the Articles of Association of the non-listed company shall distinguish between the public and the non-public companies, the initial articles of association and the amendment of the Articles of Association, the procedural restrictions and the restrictions on the rights of the entity, etc. In particular, the non-public articles of association limit the effectiveness of the transfer of shares to be null and void and, in particular cases, be valid; the non-public articles of association of the non-public non-public articles of association limit the effectiveness of the transfer of shares to be effective as a principle, with no exception. The initial Articles of Association shall, in principle, be deemed to be valid, and the limitation of the amendment to the Articles of Association shall be determined in accordance with the specific circumstances. The limitation of the Articles of Association should be limited, that is, the right to transfer of the shares of the shareholders may not be denied, and the restriction on the procedure for the transfer of the shares may be deemed to be valid.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.291.91
，
本文编号：2480897
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