股权转让中股东配偶的权利保障研究

发布时间：2019-06-09 20:05

【摘要】：由于立法对股东配偶在股权转让中享有的权利并没有详细的规定,导致了法官在审理这种类型的案件中无所适从。股东配偶享有权利存在法律基础,即我国2005年《公司法》就有限责任公司的股权转让增设的“公司章程对股权转让另有规定的,从其规定”的授权性条款；同时,股东在行使股权自由转让的权利时,不仅要符合公司法的规定,也要合理,不能侵犯配偶的利益,否则极易影响到夫妻共有财产的增减。在适当的条件下赋予转让股权的股东配偶适当的权利存在合理性基础。借鉴大陆法系代表国家的立法,可赋予股东配偶同意权、优先购买权和撤销权等权利对股权转让进行限制。同时,为避免赋予股东配偶权利后造成权利的滥用,有必要给行使权利的股东配偶以限制,应坚持三项基本原则：不得禁止股权流通；不得为不合理限制；不得强制转让股权。笔者以有限责任公司股权转让中因股东遵循自由转让原则而侵犯股东配偶的利益的案例入手,探讨股东转让股权应受到配偶限制的法律基础,并结合股权转让的相关理论、主要国家的相关规定及我国的立法态度,分析股权转让中股东配偶应享有的权利及其保障问题,比较深入全面地对股权转让中股东配偶的权利保障进行了研究,主要内容如下：第一部分为股权转让中股东配偶权利保护问题的提出。笔者在司法实务中遇到了两个关于股权转让的典型案例,该案例在适用法律的过程中,遭遇了婚姻法和公司法的博弈,对股权自由转让原则提出了挑战,从司法实务上提出应对股权转让中股东配偶权利进行保护。第二部分为股东配偶享有权利的法律基础。笔者认为股东在行使股权自由转让的权利时,不仅要符合公司法的规定,也要符合物权法、婚姻法的规定,否则极易影响到夫妻共有财产的增减。同时,股东配偶权利保障与股权自由原则并不违背。第三部分为股权转让中股东配偶权利保护的适度性。认识到有限责任公司股权转让中股东配偶权利保护的合理性,同时深刻把握保护的适度性,这是本文上述部分研究的指导原则。本章是在第二章适度限制的理念的指导上,从股东配偶享有权利应遵守的最基本层面研究了怎样把握有限责任公司股权转让限制的“度”和边界,避免赋予股东配偶权利后造成权利的滥用,因此,股东配偶行使权利时应遵守不得禁止股权流通、不得为不合理限制、不得强制转让股权三项基本原则。第四部分为股权转让中股东配偶权利保障制度构建。笔者根据主要国家和地区股权转让限制的立法例,并结合相关部分中国《公司法》的规定进行了比较,构建出有限责任公司股权转让中股东配偶权利内容、行使条件,并对股东配偶权利保障的途径提出自己的见解。第五部分为本文的结语部分。
[Abstract]:Because there is no detailed stipulation on the rights enjoyed by the shareholder's spouse in the transfer of shares, the judge is at a loss as to what to do in this kind of case. There is a legal basis for the enjoyment of the rights of the spouse of shareholders, that is, if the articles of association for the transfer of shares of a limited liability company are otherwise stipulated in the articles of association of a limited liability company in 2005, the authorization clause of the articles of association of the company shall be governed by the provisions of the articles of association of the limited liability company. At the same time, when exercising the right of free transfer of equity, shareholders should not only comply with the provisions of the company law, but also reasonable, can not infringe on the interests of the spouse, otherwise it is easy to affect the increase or decrease of the joint property of the husband and wife. Under appropriate conditions, there is a reasonable basis for giving appropriate rights to the spouse of shareholders who transfer shares. Drawing lessons from the legislation of the civil law system on behalf of the country, we can give shareholders the right of consent, preemptive and cancellation to restrict the transfer of equity. At the same time, in order to avoid the abuse of the rights caused by the rights of the spouse of the shareholders, it is necessary to restrict the spouse of the shareholders who exercise the rights, and we should adhere to three basic principles: no prohibition of the circulation of shares; no unreasonable restrictions; and no compulsory transfer of shares. Starting with the case that shareholders infringe the interests of shareholders' spouse because shareholders follow the principle of free transfer in the transfer of shares of limited liability companies, the author probes into the legal basis that shareholders should be restricted by their spouses in the transfer of shares, and combines the relevant theories of equity transfer. The relevant provisions of the main countries and the legislative attitude of our country, this paper analyzes the rights and their protection of the shareholder's spouse in the equity transfer, and makes a more in-depth and comprehensive study on the protection of the rights of the shareholder's spouse in the equity transfer. The main contents are as follows: the first part is the protection of shareholders' spouse rights in equity transfer. In judicial practice, the author encountered two typical cases of equity transfer. In the process of applying the law, the case encountered the game between marriage law and company law, which challenged the principle of free transfer of equity. From the judicial practice, it is put forward that the rights of shareholders' spouse should be protected in the transfer of shares. The second part is the legal basis for the rights of the spouse of shareholders. The author believes that when shareholders exercise the right of free transfer of equity, they should not only comply with the provisions of the company law, but also with the provisions of the property law and the marriage law, otherwise it will easily affect the increase or decrease of the joint property of husband and wife. At the same time, the protection of shareholders' spouse rights and the principle of equity freedom are not contrary to. The third part is the appropriateness of the protection of shareholders' spouse rights in equity transfer. It is the guiding principle of this paper to recognize the rationality of the protection of shareholders' spouse rights in the transfer of shares of limited liability companies and to grasp the appropriateness of protection. Under the guidance of the concept of moderate restriction in the second chapter, this chapter studies how to grasp the "degree" and boundary of the restriction of equity transfer of limited liability company from the most basic level that shareholders' spouse should abide by. To avoid the abuse of rights caused by the granting of rights to the spouse of shareholders, therefore, when exercising the rights of shareholders, the spouse of shareholders should abide by the three basic principles that the circulation of shares shall not be prohibited, the circulation of shares shall not be unreasonably restricted, and the shares shall not be forcibly transferred. The fourth part is the construction of shareholder spouse rights protection system in equity transfer. According to the legislative examples of equity transfer restrictions in major countries and regions, and combined with the provisions of the Company Law of China, the author constructs the content and conditions of shareholders' spouse rights in equity transfer of limited liability companies. And put forward their own views on the way to protect the rights of shareholders' spouse. The fifth part is the conclusion of this paper.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91

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