有限公司股权转让探析——兼论我国《公司法》相关制度之完善

A Study of Shares Transfer of Limited Liability Companies Concurrently Discussing the Perfection of Relevant Rules of Chinas Company Law

我国现行的《中华人民共和国公司法》虽然注意到内部转让与外部转让各自关涉的利益差异,并分定了内部转让与外部转让的规则,但仍需进一步完善。对于内部转让,首先,应肯定股东自治原则,即确定股东之间可以自由转让股权;其次,考虑到我国的国情,应当明确告知股东可以通过章程安排内部转让规则,并进一步设计最佳具体规则供其选择。对于外部转让,应消除转让同意表决机制的冲突,明确转让异议股东强制收购制度的前提条件,并考虑导入公司回购股权制度。

Aware of the differences between the interests involved in inside transfer and outside transfer of limited liability companies, China's Company Law sets different rules for them. The inside transfer of shares should comply primarily with the shareholder autonomy rules, i. e. the shares may be transferred among shareholders themselves freely. What follows, when taking into consideration the situation of our country, is that shareholders should be informed definitely that they are entitled by regulations to set rules of inside transfer themselves, and develop the optimum alternative rules for investors to choose. To better outside transfer, the conflict of the voting rules in the law should be settled ; the precondition of the compelled purchasing rule should be definitely objected; and share repurchasing by the company should be allowed.