有限公司收购设限股权效力解析

On the Effectiveness of Restricted Share Purchase by a Limited Company

通说认为有限公司股东之间可以自由转让股权,但现实中往往出现公司章程设置某些限制,股权作为股东私权性质的民事权利,与公司维护全员持股等封闭性特性权利之间的冲突由此产生。忽略实际存在两个层面的权利配置,是学界分歧及裁判抵牾的根源所在。股东出资入股行为表明其已经接受资本多数决的原则,并默示章程对于股权的特定安排,章程内容只要不违背强行法,即对每个股东均有约束力。假如已经必要的催告程序,公司按约或者照章"强制"收购处分设限股权,即为贯彻自治规章或者履行当事人之间的在先约定,新的权利配置师出有名,其行为的正当性毋庸置疑。如需当事股东同意,势必经过重新谈判,属于成本高昂的不良制度安排。

It is generally accepted that in China,shares are allowed for free transaction between shareholders in limited companies.But in reality,company constitutions often contain some restriction,which will lead to conflict between share rights as shareholders' private civil rights,and companies' efforts to ensure all-holding privilege of employees.The root cause of current academic controversy and judiciary mal-judgment results in ignoring the fact that allocation of share rights is two-fold.When shareholders start share ownership,they are assumed to accept the rule-of-thumb principle,and company constitution's specification of share rights.As long as constitution abides by mandatory laws,every shareholder is under its restriction.If after necessary assertions of claims,a company purchases restricted shares according to agreements or constitution,it is executing autonomic regulation or implementing previous agreements.There is no doubt on the legitimacy of such actions.If shareholder has to agree,there will have to be a new negotiation,which falls into ill institution of high cost.