股份轉(zhuǎn)讓章程設(shè)限研究
發(fā)布時(shí)間：2019-05-19 17:00
【摘要】：章程自治是公司治理中的重要內(nèi)容,公司為了將股份流動(dòng)限制在其掌控范圍內(nèi),會(huì)在公司章程或者通過(guò)股東協(xié)議的形式對(duì)股份轉(zhuǎn)讓進(jìn)行限制。實(shí)踐中不僅有限責(zé)任公司在章程中對(duì)股權(quán)轉(zhuǎn)讓設(shè)限,有些股份有限公司為實(shí)現(xiàn)特定目的也對(duì)股份轉(zhuǎn)讓在章程中作一定限制。檢索相關(guān)案例發(fā)現(xiàn)大致可將限制條款分為以下幾類:1、禁止股份轉(zhuǎn)讓或者強(qiáng)制股份轉(zhuǎn)讓。2、限制受讓人資格。3、限制轉(zhuǎn)讓時(shí)間。4、限制轉(zhuǎn)讓份額及其他限制。對(duì)于股份有限公司章程能否對(duì)股份轉(zhuǎn)讓限制這一問(wèn)題,學(xué)界有著不同觀點(diǎn),大體有以下觀點(diǎn):一是無(wú)效說(shuō)。此觀點(diǎn)認(rèn)為股份轉(zhuǎn)讓自由原則不能夠被突破,公司章程對(duì)股份轉(zhuǎn)讓的限制是無(wú)效的。二是普通的股份公司章程對(duì)股份轉(zhuǎn)讓不得限制,但是特殊行業(yè)股份公司除外,如對(duì)股東有特定要求的銀行、證券等行業(yè)。三是股份轉(zhuǎn)讓自由僅為公司法原則性規(guī)定,公司可以通過(guò)章程或者股東協(xié)議等形式作出規(guī)定。四是不同開(kāi)放程度的股份公司應(yīng)區(qū)別處理。盡管現(xiàn)在更多人認(rèn)為應(yīng)當(dāng)承認(rèn)股份有限公司股份轉(zhuǎn)讓的章程設(shè)限效力,但是有質(zhì)疑觀點(diǎn)認(rèn)為,在沒(méi)有充分理由證明現(xiàn)行法存在錯(cuò)誤的情況下,股份有限公司制度的設(shè)計(jì)仍是建立在鼓勵(lì)資本自由流動(dòng)的基礎(chǔ),在現(xiàn)行公司法沒(méi)有作出進(jìn)一步細(xì)分的時(shí),如果公司自治限制了資本的自由流動(dòng),那么這種自治是不符合公司法立法精神的,更是有礙交易的安全性,因此,不應(yīng)當(dāng)肯定這種限制。非上市股份公司章程限制股份轉(zhuǎn)讓問(wèn)題引起討論最直觀的原因就是公司法所安排相應(yīng)制度的不完善,根據(jù)我國(guó)公司法的規(guī)定,公司分為有限責(zé)任公司和股份有限公司,盡管對(duì)于上市公司做了特殊規(guī)定,但在此框架下,不同類型的非上市股份公司幾乎適用一樣的公司法規(guī)定,這便導(dǎo)致實(shí)務(wù)中對(duì)章程限制股份轉(zhuǎn)讓的正當(dāng)性有著不同觀點(diǎn)。在我國(guó)現(xiàn)在法律框架內(nèi),公司類型的劃分及相應(yīng)制度的設(shè)計(jì)所產(chǎn)生的問(wèn)題很多,因此學(xué)界一直有對(duì)我國(guó)公司類型進(jìn)行改革的聲音。隨著非上市公眾公司概念的提出及其股份轉(zhuǎn)讓制度的建設(shè),非上市公眾公司的股份轉(zhuǎn)讓渠道有了保障,其公開(kāi)性也逐漸體現(xiàn)出來(lái)。但是非上市非公眾公司的公開(kāi)性仍然沒(méi)有體現(xiàn),其與上市公司和非上市公眾公司的區(qū)別也愈發(fā)明顯,而法律對(duì)于非上市非公眾公司的特別規(guī)定也基本沒(méi)有。無(wú)論是因何種原因形成的非上市公眾公司,其公眾性特征決定了其不具有人合性質(zhì),這點(diǎn)不同于有限責(zé)任公司,就是說(shuō)非上市公眾公司的股東之間很大程度上是資本的聯(lián)合,股東之間不是以信任為基礎(chǔ)的合作關(guān)系,其基礎(chǔ)在于資本,具有資合性質(zhì)。非上市非公眾公司屬于股份有限公司,其與有限責(zé)任公司適用不同的公司法規(guī)則。但是,非上市非公眾有限公司與有限責(zé)任公司的差異越來(lái)越小,具有相對(duì)較高的人合性特征�！肮煞菀婪ㄞD(zhuǎn)讓”的公司法條款性質(zhì)及其所包含的“股份自由轉(zhuǎn)讓”原則的地位對(duì)章程限制股份轉(zhuǎn)讓的認(rèn)定起著重要作用。因法律沒(méi)有直接規(guī)定包括非上市股份公司在內(nèi)的股份公司是否可以利用章程限制股份轉(zhuǎn)讓,爭(zhēng)議的解決需基于公司法性質(zhì)的界定、公司章程自治的界限等理論問(wèn)題的討論。對(duì)于公司法的性質(zhì)存在爭(zhēng)議,主要有強(qiáng)行法說(shuō)、任意法說(shuō)和綜合說(shuō)三種觀點(diǎn)�，F(xiàn)在綜合說(shuō),也就是認(rèn)為公司法中既有強(qiáng)行性也有任意性的規(guī)定為通說(shuō)。公司法尋求的就是在自治與管制之間取得平衡,我國(guó)公司法中“股份轉(zhuǎn)讓自由”的原則應(yīng)被視為不可違背的規(guī)定有著爭(zhēng)議,本文所持觀點(diǎn)為股份轉(zhuǎn)讓自由只是原則性的規(guī)定,在人合性較強(qiáng)的非上市股份公司股份轉(zhuǎn)讓中仍應(yīng)以當(dāng)事人的自由約定為先。認(rèn)為法律規(guī)定了公司經(jīng)營(yíng)的各個(gè)方面并僅以法律為準(zhǔn)來(lái)經(jīng)營(yíng)公司的想法是不切合實(shí)際的�？梢哉f(shuō),法律只能算是影響公司行為的一個(gè)因素并且在許多時(shí)候是并不重要的一個(gè)因素。從這個(gè)角度來(lái)看,公司運(yùn)營(yíng)的核心仍然是包括公司章程在內(nèi)的公司參與者制定的相關(guān)文件而非公司法律規(guī)范,只是在特定情形下公司章程不可以違反法律的規(guī)定,即公司章程不能夠突破公司強(qiáng)制性規(guī)范。非上市股份公司章程限制股份轉(zhuǎn)讓的效力應(yīng)當(dāng)區(qū)分公眾公司與非公眾公司、初始章程與章程修訂案、程序性限制與實(shí)體權(quán)利限制等分別認(rèn)定。具體來(lái)說(shuō),非上市公眾公司章程限制股份轉(zhuǎn)讓的效力以無(wú)效為原則,特定情況下有效;非上市非公眾公司章程限制股份轉(zhuǎn)讓的效力以有效為原則,無(wú)效為例外。初始章程限制股份轉(zhuǎn)讓原則上應(yīng)認(rèn)定為有效,章程修正案作出的限制應(yīng)根據(jù)具體情形作出認(rèn)定。章程限制應(yīng)當(dāng)有限度,即不可以剝奪股東股份轉(zhuǎn)讓的權(quán)利,在對(duì)股份轉(zhuǎn)讓程序性的限制可以認(rèn)定為有效。
[Abstract]:The autonomy of the articles of association is an important part of the corporate governance. In order to restrict the flow of the shares within its control, the company may limit the transfer of the shares in the articles of association or in the form of a shareholder agreement. In practice, not only is the limited liability company limited to the equity transfer in the Articles of Association, and some of the limited liability companies also make certain restrictions on the transfer of the shares in the Articles of Association for the purpose of realizing the specific purpose. The search-related case found that the restrictions may be divided into the following categories:1, the prohibition of the transfer of shares or the forced transfer of shares,2, the restriction of the assignee's qualifications,3, the restriction of the transfer time,4, the limitation of the share of the transfer and other restrictions. There are different views on whether the Articles of Association of the Co., Ltd. can limit the transfer of shares, and there are different views in the academic field. The view was that the principle of free transfer of shares could not be breached, and the restrictions on the transfer of shares in the articles of association were not valid. The second is that the ordinary joint-stock company's articles of association shall not be limited to the transfer of the shares, except for special-purpose stock companies, such as banks, securities and other industries where the shareholders have specific requirements. Third, the freedom of transfer of the shares is only the principle of the Company Law, and the Company may make provisions in the form of the Articles of Association or the Shareholders Agreement. 4. The joint-stock companies with different degrees of openness shall be different from each other. in that view of the view that, in the absence of sufficient reason to justify the existence of an error in the current law, the design of the stock limited company is still the basis for encouraging the free flow of capital, In the absence of further sub-division in the current company law, if the self-government of the company limits the free flow of the capital, such autonomy is not in conformity with the legislative spirit of the company law, but also the security of the transaction, so this limitation should not be affirmed. The most direct reason for the discussion on the limitation of the transfer of shares by the Articles of Association of the non-listed company is the imperfect of the corresponding system under the Company Law. In accordance with the provisions of the Company Law of our country, the company is divided into limited liability company and limited liability company. In this framework, however, different types of non-listed joint-stock companies apply almost the same company law, which leads to different views on the legitimacy of the regulation of the transfer of shares in the practice. In the present legal framework of our country, the division of the company type and the problems of the design of the corresponding system have many problems, so the academic circle has always been the sound of the reform of our company type. With the introduction of the concept of non-public-public companies and the construction of its share transfer system, the transfer of shares of non-public-listed companies is guaranteed, and its openness is gradually reflected. However, the openness of the non-public non-public companies is still not reflected, and the difference between the non-public companies and the non-public companies is becoming more obvious, and the law of the non-public non-public companies is basically not. Regardless of the reason for which the non-public-listed public company is formed, its public character determines that it does not have a human-to-character nature, which is different from that of a limited liability company, that is to say, that the shareholders of the non-listed public company are largely capital-bound, The relationship between shareholders is not based on trust, and its foundation lies in the capital and the nature of the joint. The non-public non-public company is a joint stock limited company, which applies different company law rules with the limited liability company. However, the difference between the non-public non-public limited company and the limited liability company is becoming smaller and smaller, and has relatively high heterozygosity characteristics. The nature of the legal provisions of the Company Law and the principle of the free transfer of the shares contained therein play an important role in the determination of the transfer of shares in the Articles of Association. Because the law does not directly specify whether the joint-stock company, including the non-listed company, can use the articles of association to limit the transfer of shares, the settlement of the dispute shall be based on the definition of the nature of the company law, the limit of the autonomy of the company's articles of association and so on. There is a dispute about the nature of the company law. Now, it is also said that the company law has both the strong and the arbitrariness. The company law seeks to balance between self-government and control. The principle of the "free transfer of shares" in the Company Law of our country should be regarded as a non-derogable provision. The view of this paper is that the freedom of the transfer of the shares is only the principle of principle. In the transfer of a non-listed joint stock with a higher heterozygosity, the party's freedom of consent should be the first. It is not practical to think that the law sets out all aspects of the operation of the company and operates the company only on the basis of the law. It can be said that the law can only be a factor that affects the company's behavior and is not an important factor in many times. From this point of view, the core of the operation of the company is still the relevant documents developed by the company participants, including the articles of association, rather than the company's legal norm, except that the articles of association in the specific circumstances do not violate the provisions of the law, that is, the articles of association cannot break through the mandatory specifications of the company. The validity of the Articles of Association of the non-listed company shall distinguish between the public and the non-public companies, the initial articles of association and the amendment of the Articles of Association, the procedural restrictions and the restrictions on the rights of the entity, etc. In particular, the non-public articles of association limit the effectiveness of the transfer of shares to be null and void and, in particular cases, be valid; the non-public articles of association of the non-public non-public articles of association limit the effectiveness of the transfer of shares to be effective as a principle, with no exception. The initial Articles of Association shall, in principle, be deemed to be valid, and the limitation of the amendment to the Articles of Association shall be determined in accordance with the specific circumstances. The limitation of the Articles of Association should be limited, that is, the right to transfer of the shares of the shareholders may not be denied, and the restriction on the procedure for the transfer of the shares may be deemed to be valid.
【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】：2016
【分類號(hào)】：D922.291.91
，
本文編號(hào)：2480897
[Abstract]:The autonomy of the articles of association is an important part of the corporate governance. In order to restrict the flow of the shares within its control, the company may limit the transfer of the shares in the articles of association or in the form of a shareholder agreement. In practice, not only is the limited liability company limited to the equity transfer in the Articles of Association, and some of the limited liability companies also make certain restrictions on the transfer of the shares in the Articles of Association for the purpose of realizing the specific purpose. The search-related case found that the restrictions may be divided into the following categories:1, the prohibition of the transfer of shares or the forced transfer of shares,2, the restriction of the assignee's qualifications,3, the restriction of the transfer time,4, the limitation of the share of the transfer and other restrictions. There are different views on whether the Articles of Association of the Co., Ltd. can limit the transfer of shares, and there are different views in the academic field. The view was that the principle of free transfer of shares could not be breached, and the restrictions on the transfer of shares in the articles of association were not valid. The second is that the ordinary joint-stock company's articles of association shall not be limited to the transfer of the shares, except for special-purpose stock companies, such as banks, securities and other industries where the shareholders have specific requirements. Third, the freedom of transfer of the shares is only the principle of the Company Law, and the Company may make provisions in the form of the Articles of Association or the Shareholders Agreement. 4. The joint-stock companies with different degrees of openness shall be different from each other. in that view of the view that, in the absence of sufficient reason to justify the existence of an error in the current law, the design of the stock limited company is still the basis for encouraging the free flow of capital, In the absence of further sub-division in the current company law, if the self-government of the company limits the free flow of the capital, such autonomy is not in conformity with the legislative spirit of the company law, but also the security of the transaction, so this limitation should not be affirmed. The most direct reason for the discussion on the limitation of the transfer of shares by the Articles of Association of the non-listed company is the imperfect of the corresponding system under the Company Law. In accordance with the provisions of the Company Law of our country, the company is divided into limited liability company and limited liability company. In this framework, however, different types of non-listed joint-stock companies apply almost the same company law, which leads to different views on the legitimacy of the regulation of the transfer of shares in the practice. In the present legal framework of our country, the division of the company type and the problems of the design of the corresponding system have many problems, so the academic circle has always been the sound of the reform of our company type. With the introduction of the concept of non-public-public companies and the construction of its share transfer system, the transfer of shares of non-public-listed companies is guaranteed, and its openness is gradually reflected. However, the openness of the non-public non-public companies is still not reflected, and the difference between the non-public companies and the non-public companies is becoming more obvious, and the law of the non-public non-public companies is basically not. Regardless of the reason for which the non-public-listed public company is formed, its public character determines that it does not have a human-to-character nature, which is different from that of a limited liability company, that is to say, that the shareholders of the non-listed public company are largely capital-bound, The relationship between shareholders is not based on trust, and its foundation lies in the capital and the nature of the joint. The non-public non-public company is a joint stock limited company, which applies different company law rules with the limited liability company. However, the difference between the non-public non-public limited company and the limited liability company is becoming smaller and smaller, and has relatively high heterozygosity characteristics. The nature of the legal provisions of the Company Law and the principle of the free transfer of the shares contained therein play an important role in the determination of the transfer of shares in the Articles of Association. Because the law does not directly specify whether the joint-stock company, including the non-listed company, can use the articles of association to limit the transfer of shares, the settlement of the dispute shall be based on the definition of the nature of the company law, the limit of the autonomy of the company's articles of association and so on. There is a dispute about the nature of the company law. Now, it is also said that the company law has both the strong and the arbitrariness. The company law seeks to balance between self-government and control. The principle of the "free transfer of shares" in the Company Law of our country should be regarded as a non-derogable provision. The view of this paper is that the freedom of the transfer of the shares is only the principle of principle. In the transfer of a non-listed joint stock with a higher heterozygosity, the party's freedom of consent should be the first. It is not practical to think that the law sets out all aspects of the operation of the company and operates the company only on the basis of the law. It can be said that the law can only be a factor that affects the company's behavior and is not an important factor in many times. From this point of view, the core of the operation of the company is still the relevant documents developed by the company participants, including the articles of association, rather than the company's legal norm, except that the articles of association in the specific circumstances do not violate the provisions of the law, that is, the articles of association cannot break through the mandatory specifications of the company. The validity of the Articles of Association of the non-listed company shall distinguish between the public and the non-public companies, the initial articles of association and the amendment of the Articles of Association, the procedural restrictions and the restrictions on the rights of the entity, etc. In particular, the non-public articles of association limit the effectiveness of the transfer of shares to be null and void and, in particular cases, be valid; the non-public articles of association of the non-public non-public articles of association limit the effectiveness of the transfer of shares to be effective as a principle, with no exception. The initial Articles of Association shall, in principle, be deemed to be valid, and the limitation of the amendment to the Articles of Association shall be determined in accordance with the specific circumstances. The limitation of the Articles of Association should be limited, that is, the right to transfer of the shares of the shareholders may not be denied, and the restriction on the procedure for the transfer of the shares may be deemed to be valid.
【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】：2016
【分類號(hào)】：D922.291.91
，
本文編號(hào)：2480897
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