私法正义缘何而来?——闭锁性股权收购定价原则的再解释

How Can Justice in Private Law Realize?

股权转让乃私法交易,而私法交易中的正义属正义网束中的交换正义。交换正义是一种过程正义,而非结果正义;交换正义所体现的交易公平是“主观等价型”的公平。无论如何理解,私法正义最终都将归结为“私法自治”。故设定强制性规则,要求某类企业的股权转让必须按照净资产值衡定转让价格,欠缺正当性。股权收购定价应回归“私法自治”。

Transfer of stocks is the transaction in private law, and justice in private law belongs to justice of exchange. Justice of exchange is a kind of justice in procedure, but not in result. The equity embodied in justice of exchange is “subjective equality in value”. No matter how to understand, justice in private law should be summed up as autonomy in private law. The justification of justice in private law is individualism in methodology, so the practice of enacting mandate rules demanding all establishments transfer its stocks in accordance with the net capital is not reasonable. The acquisition in stocks should go back to autonomy in private law.