有限责任公司股权质押效力规则的反思与重构

Rethinking and Restructuring the Rules on the Effect of Share Pledges in Limited Liability Companies

《担保法》第78条与《担保法司法解释》第103条应予废止,股权质押合同原则上自其成立时起生效。《物权法》第226条第1款应修改为股权质权自公司股东名册记载股权出质事实起生效,工商行政部门出质登记仅具有对抗等三人的效力。股权质押合同的生效和股权质权的设定均无需遵守《公司法》第72条有关股东向公司外第三人转让股权的程序性规定。目标公司对质权人负有尊重和维护质押股权价值的义务。现行部门规章对外资公司股权质押行为采取审批生效主义的保守态度应予废除,从而将股权质押效力彻底回归合同法、物权法与公司法的轨道,最终实现内外资公司股权质押规则的统一。

Article 78 of the Guarantee Law and Article 103 of the Judicial Interpretation of Guarantee Law should be repealed,and the pledge contract shall in principle go into effect as the date of establishment.Article 226 Paragraph 1 of the Real Right Law should be amended as follows：the right of share pledges shall be established after the registry of company shareholders has recorded the pledge and the pledge registered by the administrative department for industry and commerce only has the effect of standing up to any third party.The effectiveness of the pledge contract and establishment of the right of share pledges do not need to comply with the relevant procedural provisions concerning a shareholder transferring his/her stock rights to any one other than the shareholders stipulated in Article 72 of the Company Law.Target company shall have the obligation to the pledgee to respect and maintain the value of pledged shares.The conservative attitude of taking the measure of effectiveness upon approval towards the share pledge of foreign-invested companies in the existing regulations should be repealed with a view to making the effectiveness of the share pledge back to the track of contract law,property law and company law,finally realizing the unification of rules on the share pledge in domestic and foreign-invested companies.