论股东优先购买权的法律效力

发布时间：2018-06-20 17:41

本文选题：股东优先购买权 + 对内效力　；参考：《浙江大学》2017年硕士论文

【摘要】：股东优先购买权作为特殊法定优先权的一种,通过对股东转让股权的自由进行限制来保护有限责任公司的人合性。股东优先购买权纠纷频繁发生,该类案件在司法实践中常出现同案不同判的困境。笔者对相关案件裁判从对内、对外效力两个角度进行梳理,对内效力纠纷主要集中在其他股东作出行使优先购买权的意思表示,是否能够直接与转让股东之间形成股权转让合同,在法院判决撤销转让股东与第三人间的股权转让协议或者转让股东与第三人协商解除转让协议之后,其他股东是否还能行使优先购买权。对外效力纠纷主要集中在股东未履行公司法或者章程规定的程序与第三人签订的股权转让协议的效力如何,若第三人已经在股东名册上被记载为股东,且股东变更事宜已经办理工商变更登记,其他股东是否还能主张行使优先购买权。司法实践难以作出相对统一的判决,根源在于立法供应不足。通过司法解释来补足相关制度是目前比较合适的解决路径,只有对股东优先购买权法律效力相关问题进行全面梳理,才可能制定出可以妥当解决纠纷的司法解释。股权的性质和股权变动模式是解决股东优先购买权问题的关键。笔者从股权性质出发,股权是个体性权利和团体性权利的统一,兼有请求权和支配权的属性,对股权变动模式有至关重要影响。从规范和学理角度进行分析股权变动形式主义模式和单纯的意思主义模式都存在问题,笔者认为把其他股东同意和放弃优先购买权作为股权变动生效要件修正的意思主义模式才是合理选择。在此基础上,笔者对股东优先购买权对内、对外效力进行规范和学理分析。在对内效力方面,股东优先购买权在性质上应采纳形成权说的观点,其他股东主张优先购买权的,能够直接与转让股东之间形成股权转让合同,在法院判决撤销转让股东与第三人间的股权转让协议或者转让股东与第三人协商解除转让协议之后,其他股东原则上可以行使优先购买权。在对外效力方面,股东未履行公司法或者章程规定的程序与第三人签订的股权转让协议的效力并不因此而无效,若不存在一般合同无效事由,应为有效。若未经其他股东同意和放弃优先购买权,却已经进行股东名册变更和工商登记变更,应属错误登记,其他股东仍可以行使优先购买权。最后,笔者对股东优先购买权对内、对外效力问题进行总结,也对(《公司法》司法解释四)的相关规定进行梳理与反思,提出自己的建议,希望能够为相关案件裁判提供参考。
[Abstract]:As a kind of special legal priority, the shareholders' preemption right protects the human nature of limited liability companies by restricting the freedom of shareholders to transfer shares. Shareholders' preemptive right disputes occur frequently, such cases in judicial practice often appear the dilemma of different judgments in the same case. The author combs the judgment of relevant cases from two angles of internal and external effectiveness. The dispute on internal effectiveness mainly focuses on other shareholders' intention to exercise the preemptive right. Whether an equity transfer contract can be formed directly between the transferring shareholder and the transferring shareholder, after the court has decided to revoke the equity transfer agreement between the transferring shareholder and the third party, or after the transferring shareholder has negotiated with the third party to terminate the transfer agreement, Whether other shareholders can still exercise the preemptive right. The dispute over external effectiveness mainly focuses on the effectiveness of the equity transfer agreement signed by the third party with a third party, if the third party has already been recorded as a shareholder in the register of shareholders, if the shareholder has not fulfilled the procedures prescribed in the Company Law or the articles of Association. And the change of shareholders has been registered for industrial and commercial change, other shareholders can also claim to exercise the preemptive right. Judicial practice is difficult to make a relatively uniform decision, the root of which lies in the insufficient supply of legislation. To complement the relevant system through judicial interpretation is a more appropriate way to solve the problem. Only through a comprehensive analysis of the legal effect of shareholders' preemptive right can we formulate a judicial interpretation that can properly resolve disputes. The nature of equity and the mode of equity change are the key to solve the problem of shareholders' preemption right. Starting from the nature of equity, equity is the unity of individual right and group right, which has the attributes of both claim right and control right, which has a vital influence on the mode of stock right change. From the angle of normative and theoretical analysis, there are problems in both the formalism mode of equity change and the pure intention doctrine model. The author thinks that it is the reasonable choice to take the consent of other shareholders and the waiver of the preemption right as the amendment of the effective elements of the stock change. On this basis, the author makes normative and theoretical analysis on the internal and external effectiveness of shareholders' preemption right. In terms of internal effectiveness, shareholders' preemption rights should adopt the viewpoint of forming rights in nature. If other shareholders advocate preemption rights, they can form a contract for the transfer of shares directly with the transferring shareholders. Other shareholders may, in principle, exercise the preemptive right after the court has decided to revoke the equity transfer agreement between the transferring shareholder and the third party or the transfer shareholder to negotiate with the third party to terminate the transfer agreement. In the aspect of external effectiveness, the shareholder's failure to perform the procedure stipulated in the Company Law or the procedure stipulated in the articles of Association and the effect of the equity transfer agreement signed by the third party are not invalidated because of this. If there is no reason for the general contract to be invalid, it shall be valid. If the prior purchase right has been changed without the consent of other shareholders and the change of business registration has been made, it should be wrong to register, and other shareholders can still exercise the preemptive right. Finally, the author summarizes the issues of the shareholder's preemptive right to domestic and external effectiveness, and also combs and reflects on the relevant provisions of (the fourth judicial interpretation of Company Law), and puts forward his own suggestions, hoping to provide a reference for the relevant cases adjudication.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91

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