論有限責(zé)任公司股東優(yōu)先購(gòu)買權(quán)的行使問(wèn)題
發(fā)布時(shí)間：2018-11-10 20:31
【摘要】：有限責(zé)任公司,可以說(shuō)是出于對(duì)股份公司與合伙企業(yè)這兩種企業(yè)形態(tài)的制度缺陷進(jìn)行彌補(bǔ)的目的產(chǎn)生的一種別具特色的公司形態(tài),兼有資合性和人合性,這一雙重特性決定了股權(quán)轉(zhuǎn)讓必須受到一定的限制,在保障股權(quán)自由轉(zhuǎn)讓的基礎(chǔ)上兼顧對(duì)有限責(zé)任公司的人合性基礎(chǔ)的保護(hù),進(jìn)而實(shí)現(xiàn)股東預(yù)期的維護(hù)公司穩(wěn)定的運(yùn)營(yíng)秩序的愿望。對(duì)此,世界上大部分國(guó)家通行的做法是采取賦予股東優(yōu)先購(gòu)買權(quán)的方式,通過(guò)其制度價(jià)值的發(fā)揮,平衡股權(quán)的流動(dòng)性、公司的人合性與交易的安全性三者之間的價(jià)值沖突。然而,隨著市場(chǎng)經(jīng)濟(jì)的不斷深化及現(xiàn)代公司制度的日益完善,在資源配置日益市場(chǎng)化的趨勢(shì)下,有限責(zé)任公司的股權(quán)轉(zhuǎn)讓行為變得越發(fā)普遍和頻繁,隨之產(chǎn)生的糾紛也與日俱增,尤其是股東優(yōu)先購(gòu)買權(quán)的切實(shí)行使問(wèn)題愈發(fā)突出。因此,從有效保障股東的合法權(quán)益與合理預(yù)期方面考慮,折射出對(duì)股東優(yōu)先購(gòu)買權(quán)制度進(jìn)行深入而理性的探討的必要性,希望能尋求得到相對(duì)合理的解決方案用以保障股東優(yōu)先購(gòu)買權(quán)制度價(jià)值的充分發(fā)揮。 在我國(guó),公司法自1993年實(shí)施以來(lái)歷經(jīng)三次修改,2005年修訂的《公司法》明文規(guī)定了股東優(yōu)先購(gòu)買權(quán),但對(duì)于這一權(quán)利的具體行使問(wèn)題卻規(guī)定得過(guò)于粗糙,明顯缺乏可操作性;但在學(xué)術(shù)界,國(guó)內(nèi)外對(duì)于股東優(yōu)先購(gòu)買權(quán)的理論研究已進(jìn)行得如火如荼并取得了重要的研究成果,很多國(guó)家在此基礎(chǔ)上進(jìn)行的立法實(shí)踐也取得了顯著的社會(huì)效果,對(duì)我國(guó)具有重要的借鑒意義。 本文以股東的優(yōu)先購(gòu)買權(quán)為核心論題,在分析國(guó)內(nèi)外先進(jìn)的立法經(jīng)驗(yàn)的基礎(chǔ)上,對(duì)我國(guó)的股東優(yōu)先購(gòu)買權(quán)的性質(zhì)、行使、法律保護(hù)等重要理論與實(shí)踐問(wèn)題進(jìn)行重點(diǎn)分析,希望在此基礎(chǔ)上明確個(gè)人觀點(diǎn)、提出獨(dú)特見解。
[Abstract]:Limited liability company, can be said to be out of the joint-stock company and partnership enterprises to make up for the institutional defects of the two forms of the purpose of a unique corporate form, both capital and human nature, This dual characteristic determines that the transfer of shares must be restricted to a certain extent, and on the basis of guaranteeing the free transfer of equity, the protection of the interpersonal basis of limited liability companies should be taken into account. And then realize the desire of shareholders to maintain the stable operation order of the company. To this end, most of the countries in the world adopt the way of giving priority to shareholders, balance the liquidity of stock right, the value conflict of the company and the security of transaction through the exertion of its system value. However, with the deepening of the market economy and the improvement of the modern company system, under the trend of the increasingly market-oriented allocation of resources, the transfer of stock rights of limited liability companies has become more and more common and frequent. The resulting disputes are also increasing, especially the practical exercise of shareholders' preemption rights is becoming more and more prominent. Therefore, considering the effective protection of the legitimate rights and interests of shareholders and reasonable expectations, it reflects the necessity of a deep and rational discussion on the system of shareholders' preemption rights. We hope to find a relatively reasonable solution to ensure the full value of shareholders' priority right. In our country, the Company Law has been revised three times since its implementation in 1993. The Company Law amended in 2005 explicitly stipulates the right of shareholders' preemption, but the specific exercise of this right is too rough and obviously lack of maneuverability. However, in academic circles, the theoretical research on shareholders' preemption right has been carried out in full swing at home and abroad, and important research results have been obtained, and many countries' legislative practice on this basis has also achieved remarkable social effects. It has important reference significance to our country. Based on the analysis of the advanced legislative experience at home and abroad, this paper focuses on the theoretical and practical issues of the nature, exercise and legal protection of the prior purchase right of shareholders in China, taking the priority right of shareholders as the core topic, and on the basis of analyzing the advanced legislative experience at home and abroad. Hope that on this basis clear personal views, put forward unique views.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D922.291.91
本文編號(hào)：2323539
[Abstract]:Limited liability company, can be said to be out of the joint-stock company and partnership enterprises to make up for the institutional defects of the two forms of the purpose of a unique corporate form, both capital and human nature, This dual characteristic determines that the transfer of shares must be restricted to a certain extent, and on the basis of guaranteeing the free transfer of equity, the protection of the interpersonal basis of limited liability companies should be taken into account. And then realize the desire of shareholders to maintain the stable operation order of the company. To this end, most of the countries in the world adopt the way of giving priority to shareholders, balance the liquidity of stock right, the value conflict of the company and the security of transaction through the exertion of its system value. However, with the deepening of the market economy and the improvement of the modern company system, under the trend of the increasingly market-oriented allocation of resources, the transfer of stock rights of limited liability companies has become more and more common and frequent. The resulting disputes are also increasing, especially the practical exercise of shareholders' preemption rights is becoming more and more prominent. Therefore, considering the effective protection of the legitimate rights and interests of shareholders and reasonable expectations, it reflects the necessity of a deep and rational discussion on the system of shareholders' preemption rights. We hope to find a relatively reasonable solution to ensure the full value of shareholders' priority right. In our country, the Company Law has been revised three times since its implementation in 1993. The Company Law amended in 2005 explicitly stipulates the right of shareholders' preemption, but the specific exercise of this right is too rough and obviously lack of maneuverability. However, in academic circles, the theoretical research on shareholders' preemption right has been carried out in full swing at home and abroad, and important research results have been obtained, and many countries' legislative practice on this basis has also achieved remarkable social effects. It has important reference significance to our country. Based on the analysis of the advanced legislative experience at home and abroad, this paper focuses on the theoretical and practical issues of the nature, exercise and legal protection of the prior purchase right of shareholders in China, taking the priority right of shareholders as the core topic, and on the basis of analyzing the advanced legislative experience at home and abroad. Hope that on this basis clear personal views, put forward unique views.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D922.291.91
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 葉萍;論有限責(zé)任公司股東優(yōu)先購(gòu)買權(quán)制度[D];吉林大學(xué);2013年
，本文編號(hào)：2323539
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