有限责任公司股权外部转让限制规则研究
发布时间：2019-05-31 15:25
【摘要】：有限责任公司是我国重要的商事组织之一。它是德国立法的创造,是为满足中小企业需求而专门设置的强制性规范较少,允许章程自治较多的公司形式。它一般具有以下特点:股东人数较少,股东之间联系较为紧密,股东多参与管理等。正因其存在这些特点,立法才会限制有限责任公司股权外部转让,这也正是本文选题讨论的意义所在。 本文分为引言、正文、结论三部分。其中正文部分共分为四章,其结构如下: 第一章,因“股权外部转让限制”并不是法学上的基本概念,其基本概念是股权、股权变动及买卖契约等。因而本文以限制与这几个基本概念的相关性引出论文,试图阐述什么是股权外部转让限制,股权外部转让限制与股权变动以及股权买卖合同有何种联系,并得出以下结论:股权外部转让会产生新股东,因股权兼具身份性和资本性,新股东的加入一般需要得到公司同意,股权外部转让限制与股权特点密不可分;由于股权的权能一般不能单独让与,所以转让限制需要限制股权的可转让性,而对股权可转让性的限制在不同的权利变动模式下法律效果存在差异。在此基础上讨论立法制定限制规则的利益考量。因限制是对转让自由原则的突破,立法必然是出于保护特定利益的考量。在股权外部转让限制中有三种利益需要平衡——公司利益、剩余股东利益以及出让股东利益,在此三种利益不一致时,立法需要作出取舍。后文中对于大陆法系其他国家限制规则采用的模式以及法律效果的讨论正是立足于以上两部分结论进行。 第二章,从比较法角度对股权转让限制规则采用的模式以及法律效果进行分析。主要选取比较大陆法系德、日、法、瑞士等国立法。其原因首先是我国民法遵循大陆法系民法传统,股权转让涉及民法适用;其次,上述国家立法代表不同权利变动模式,日本虽是意思主义变动模式,但其对意思主义有所修正,在不同权利变动模式下,限制的法律效果各异。另外,虽然上述国家都采取了转让须经公司同意模式,但由于我国《公司法》上有优先购买权的适用,所以对其相关规定也作讨论,并从利益取舍的角度对两种模式比较。 第三章,对我国《公司法》限制规则具体分析。在限制模式上我国采取须经同意模式加优先购买权模式,与我国台湾地区“公司法”最接近,本章一同讨论。分析我国规则也是遵循着限制模式上的利益取舍以及限制规则法律效果的路径,认为我国在限制模式上出于兼顾三种利益的考量后不得不牺牲效率,且三种利益并没有得到很好实现,同时由于立法没有规定法律效果,学界争议也颇多。综合我国立法以上特点,本文认为限制规则只能在三种利益中作出取舍,其法律效果主要是影响权利变动,对股权外部转让合同不宜产生直接影响。 第四章,试图提出完善建议。由于股权外部转让限制模式本身存在多样化选择,所以本文作出开放性结论。从上述三种利益的平衡角度,本文认为同意条款与优先购买权是两可的选择,立法择其一完善即可,转让限制规则宜仅影响股权变动。在限制规则制定上《公司法》应当以效率优先,明确权利义务内容,以促使股权法律关系尽快稳定。
[Abstract]:The limited liability company is one of the most important commercial organizations in our country. It is the creation of German legislation, which is a special set of mandatory norms to meet the needs of small and medium-sized enterprises, and allows the articles of association to be in the form of more companies. It generally has the following characteristics: the number of shareholders is small, the contact between the shareholders is relatively close, and the shareholders' multi-participation management and the like. Because of these characteristics, the legislation will restrict the transfer of the limited liability of the limited liability company, which is the meaning of the discussion in this paper. This paper is divided into the introduction, the text and the conclusion. The text is divided into four chapters, and its structure The following is the first chapter, because the "Restrictions on the external transfer of equity" is not the basic concept in the law, its basic concept is the equity, the change of the stock right, and In this paper, the author tries to explain what is the limitation of the external transfer of the equity, the limitation of the external transfer of the stock, the change of the equity and the relationship between the equity and the sales contract, and the following conclusions are drawn: the external transfer of the equity To generate new shareholders, because the equity has both identity and capital, the addition of new shareholders generally needs to be agreed by the company, and the limitation of the external transfer of the equity is closely related to the characteristics of the equity. As the power of the equity is generally not allowed to be alone, the transfer restriction needs to limit the equity The transferability of the equity, and the restriction of the transferability of the equity in different rights. There is a difference in the fruit. On the basis of this, the paper discusses the limitation of legislation. The limitation is the breakthrough of the principle of the transfer of freedom, and the legislation must be for the protection of the specific The consideration of the interests. There are three interests in the limitation of the external transfer of the equity. The interests of the company, the interests of the remaining shareholders and the interests of the transfer shareholders, when the three interests are inconsistent, the legislation needs to be To make a trade-off, the model and the legal effect of the other countries' restriction rules in the civil law system are based on the above two. The second chapter, from the comparative law angle, applies the model of the restriction rule of the equity transfer. The legal effect is analyzed. The main choice is to compare the civil law system Germany and the day, The reason for this is that the civil law of our country follows the civil law tradition of the continental law system, the transfer of the stock right involves the application of the civil law; secondly, the above-mentioned national legislation represents the change pattern of the different rights, while Japan is the means of the change of the meaning, but it has been amended to the meaning, and in no way in that same mode of change, the limit The legal effect of the system is different. In addition, while the above-mentioned countries have adopted the mode of consent of the Company, the relevant provisions of the Company are also discussed and the angle of the trade-off is also discussed in view of the application of the preemptive right in the Company Law of our country. The third chapter is to compare the two modes. The article makes a concrete analysis of the rules of the administration of justice. In the restricted mode, our country adopts the mode of pre-emption of the consent mode and the "Company Law" The most approach is discussed in this chapter. The analysis of our country's rules is also the path that follows the trade-off of the restrictive model and the legal effect of the restriction rules. The benefits are not well achieved, and as the legislation does not provide for law The author thinks that the restriction rules can only make the trade-off in the three interests, and the legal effect is mainly the influence of the change of the right and the external rotation of the stock right. It is not appropriate for the contract to have a direct impact. In the fourth chapter, we try to put forward and perfect the suggestion, because the limited mode of the external transfer of the stock rights itself is diversified Therefore, this paper makes an open conclusion. From the balance angle of the three interests, this paper holds that the consent terms and the pre-emption right are two kinds of choices, and the legislative choice is perfect. The transfer restriction rules should only affect the change of the equity. In the formulation of the restriction rules, the Company Law should give priority to the efficiency and clarify the content of the rights and obligations.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2489808
[Abstract]:The limited liability company is one of the most important commercial organizations in our country. It is the creation of German legislation, which is a special set of mandatory norms to meet the needs of small and medium-sized enterprises, and allows the articles of association to be in the form of more companies. It generally has the following characteristics: the number of shareholders is small, the contact between the shareholders is relatively close, and the shareholders' multi-participation management and the like. Because of these characteristics, the legislation will restrict the transfer of the limited liability of the limited liability company, which is the meaning of the discussion in this paper. This paper is divided into the introduction, the text and the conclusion. The text is divided into four chapters, and its structure The following is the first chapter, because the "Restrictions on the external transfer of equity" is not the basic concept in the law, its basic concept is the equity, the change of the stock right, and In this paper, the author tries to explain what is the limitation of the external transfer of the equity, the limitation of the external transfer of the stock, the change of the equity and the relationship between the equity and the sales contract, and the following conclusions are drawn: the external transfer of the equity To generate new shareholders, because the equity has both identity and capital, the addition of new shareholders generally needs to be agreed by the company, and the limitation of the external transfer of the equity is closely related to the characteristics of the equity. As the power of the equity is generally not allowed to be alone, the transfer restriction needs to limit the equity The transferability of the equity, and the restriction of the transferability of the equity in different rights. There is a difference in the fruit. On the basis of this, the paper discusses the limitation of legislation. The limitation is the breakthrough of the principle of the transfer of freedom, and the legislation must be for the protection of the specific The consideration of the interests. There are three interests in the limitation of the external transfer of the equity. The interests of the company, the interests of the remaining shareholders and the interests of the transfer shareholders, when the three interests are inconsistent, the legislation needs to be To make a trade-off, the model and the legal effect of the other countries' restriction rules in the civil law system are based on the above two. The second chapter, from the comparative law angle, applies the model of the restriction rule of the equity transfer. The legal effect is analyzed. The main choice is to compare the civil law system Germany and the day, The reason for this is that the civil law of our country follows the civil law tradition of the continental law system, the transfer of the stock right involves the application of the civil law; secondly, the above-mentioned national legislation represents the change pattern of the different rights, while Japan is the means of the change of the meaning, but it has been amended to the meaning, and in no way in that same mode of change, the limit The legal effect of the system is different. In addition, while the above-mentioned countries have adopted the mode of consent of the Company, the relevant provisions of the Company are also discussed and the angle of the trade-off is also discussed in view of the application of the preemptive right in the Company Law of our country. The third chapter is to compare the two modes. The article makes a concrete analysis of the rules of the administration of justice. In the restricted mode, our country adopts the mode of pre-emption of the consent mode and the "Company Law" The most approach is discussed in this chapter. The analysis of our country's rules is also the path that follows the trade-off of the restrictive model and the legal effect of the restriction rules. The benefits are not well achieved, and as the legislation does not provide for law The author thinks that the restriction rules can only make the trade-off in the three interests, and the legal effect is mainly the influence of the change of the right and the external rotation of the stock right. It is not appropriate for the contract to have a direct impact. In the fourth chapter, we try to put forward and perfect the suggestion, because the limited mode of the external transfer of the stock rights itself is diversified Therefore, this paper makes an open conclusion. From the balance angle of the three interests, this paper holds that the consent terms and the pre-emption right are two kinds of choices, and the legislative choice is perfect. The transfer restriction rules should only affect the change of the equity. In the formulation of the restriction rules, the Company Law should give priority to the efficiency and clarify the content of the rights and obligations.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
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