论股票公开发行和上市的关系

Discussion about the Relationship between Stock Issuance and Listing

通过对股票公开发行行为的分析,可以发现,股票公开发行以及是否准备上市体现了发行人和投资者之间的合意,契约性是该行为的基本法律属性。但是,股票公开发行属于要式行为,双方合意的效力首先取决于法律的许可,并应符合法定的条件,而且,在我国该合意生效的前提是股票公开发行的核准。股票公开发行后是否上市,将在法律适用、投资者权利内容和保护方式、监管模式等方面产生差异。股票公开发行且不上市将催生我国新的公司形态——非上市公众公司,这方面的理论研究和制度建设亟需加强。

Through the analysis of stock public issuance behavior, one can find that stock＇ s is- suing and listing reflect consensus between the issuer and the investors. One basic legal attribute of this behavior is contractual. But the issuing of stock is a formal juristic act with specific require- ments. First, the effectiveness of consensus depends on the permission of law. Second, it should ac- cord with the legal conditions. And another precondition of the consensus is public issuance permis- sion from the regulatory authority in our country. Whether a company is going listing after stock issu- ing would make differences in some key areas, such as legal application for the company, its investor rights, investor protection, and its regulatory model. Company issuing stocks but not listed will gen- erate a new company form in our country--non-listing public company. Theoretical research and re- lated legal system construction about this new type of company should be strengthened.