有限责任公司股权对外转让程序限制二题
发布时间：2019-04-02 02:10
【摘要】： 理论上一般认为,有限责任公司具有人合性,因此其股权对外转让受有程序限制。旧《公司法》第三十五规定的同意条款和先买条款是对股权转让的双重限制,但因其规定过于原则,在实践中缺乏可操作性,容易引起纠纷,司法实践中相关案件层出不穷。新《公司法》第七十二条第二款及第三款对此作出了相应的修改和完善,但对于同意条款的表决机制和先买条款的适用对象却未有变化。本文即围绕这两个问题展开。 本文第一部分以民法上权利变动的体系为基础,建构了股权变动的新体系。在此体系之下,界定了股权转让的内涵和外延,为下文具体问题的相关讨论奠定基础。 本文第二部分围绕《公司法》第七十二条第二款第一句的“其他股东过半数”,探讨同意条款的表决机制。通说认为,此“过半数”系采人头多数决,而非资本多数决。这种观点违背大陆法系国家的立法通例,造成公司法内部体系上的矛盾,与股权平等的基本原则相悖,其支撑理由亦经不起学理上的推敲,故不足为采。运用文义解释、体系解释、比较解释、社会学解释等方法,“过半数”应当解释为表决权过半数。 本文第三部分探讨先买条款的适用对象问题。通说认为,《公司法》第七十二条第三款的“其他股东”包括同意股东和反对股东。这种观点可能诱使其他股东违背诚实信用原则,恶意阻挠股权对外转让、股东退出公司,消减公司法鼓励投资理念之实现,故应当对“其他股东”采目的性限缩,排除先买条款对同意股东的适用。
[Abstract]:In theory, it is generally believed that limited liability companies have human nature, so the transfer of their equity to the outside world is restricted by procedures. The consent clause and the pre-purchase clause in the former Company Law 35 are the double restrictions on the transfer of shares. However, due to the excessive principle of the provisions, the lack of maneuverability in practice, it is easy to cause disputes, and the related cases emerge in the judicial practice in an endless stream. The second and third paragraphs of Article 72 of the New Company Law have made corresponding amendments and improvements, but the voting mechanism of the consent clause and the applicable object of the pre-emptive clause have not changed. This paper focuses on these two issues. The first part of this paper, based on the system of right change in civil law, constructs a new system of stock right change. Under this system, the connotation and extension of the equity transfer are defined, which lays the foundation for the discussion of the specific issues below. The second part of this paper discusses the voting mechanism of the consent clause around the "majority of other shareholders" in the first sentence of the second paragraph of Article 72 of the Company Law. General said, this "majority" is the decision of the majority, not the capital majority. This view is contrary to the general legislation of civil law countries, resulting in contradictions in the internal system of company law, contradicting the basic principle of equity equality, and its supporting reasons can not stand the scrutiny of theoretical theory, so it is not enough to adopt. By means of textual interpretation, systematic interpretation, comparative interpretation and sociological interpretation, "majority" should be interpreted as more than half of voting rights. The third part of this paper discusses the applicable object of the buy-first clause. Article 72, paragraph 3, of the Company Law, "other shareholders" includes agreeing shareholders and opposing shareholders. This view may induce other shareholders to violate the principle of good faith, maliciously obstruct the transfer of equity to the outside world, shareholders withdraw from the company, reduce the company law to encourage the realization of the concept of investment, so "other shareholders" should be adopted in the sexual constraints, Excludes the application of pre-emptive terms to consenting shareholders.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2452134
[Abstract]:In theory, it is generally believed that limited liability companies have human nature, so the transfer of their equity to the outside world is restricted by procedures. The consent clause and the pre-purchase clause in the former Company Law 35 are the double restrictions on the transfer of shares. However, due to the excessive principle of the provisions, the lack of maneuverability in practice, it is easy to cause disputes, and the related cases emerge in the judicial practice in an endless stream. The second and third paragraphs of Article 72 of the New Company Law have made corresponding amendments and improvements, but the voting mechanism of the consent clause and the applicable object of the pre-emptive clause have not changed. This paper focuses on these two issues. The first part of this paper, based on the system of right change in civil law, constructs a new system of stock right change. Under this system, the connotation and extension of the equity transfer are defined, which lays the foundation for the discussion of the specific issues below. The second part of this paper discusses the voting mechanism of the consent clause around the "majority of other shareholders" in the first sentence of the second paragraph of Article 72 of the Company Law. General said, this "majority" is the decision of the majority, not the capital majority. This view is contrary to the general legislation of civil law countries, resulting in contradictions in the internal system of company law, contradicting the basic principle of equity equality, and its supporting reasons can not stand the scrutiny of theoretical theory, so it is not enough to adopt. By means of textual interpretation, systematic interpretation, comparative interpretation and sociological interpretation, "majority" should be interpreted as more than half of voting rights. The third part of this paper discusses the applicable object of the buy-first clause. Article 72, paragraph 3, of the Company Law, "other shareholders" includes agreeing shareholders and opposing shareholders. This view may induce other shareholders to violate the principle of good faith, maliciously obstruct the transfer of equity to the outside world, shareholders withdraw from the company, reduce the company law to encourage the realization of the concept of investment, so "other shareholders" should be adopted in the sexual constraints, Excludes the application of pre-emptive terms to consenting shareholders.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
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