论股东优先购买权的效力

On the Effect of Shareholders' Right of Preemption

股东优先购买权是公司法上的特别形成权,该种权利可以通过公司章程予以排除。股权转让合同成立的条件是股权对外转让的基础事实和优先权人主张优先权。如果优先权人主张优先权,则在转让人与优先权人之间成立以转让人与第三人之间合同为内容的股权转让合同,但前提条件是转让人与第三人已经就股权转让合同的主要条件达成一致。而对于转让人与第三人之间先前签订的股权转让合同,不因股东行使优先购买权而影响其效力,但是,该合同无法履行。从优先权人主张优先权时起,股权发生变动。如果未通知优先权人即将股权转让于第三人并进行了股东名册或者公司登记机关的登记,优先权人主张优先权的,原则上能够对抗第三人,但是,如果变更登记时间已经超过三年,或者会损害他人利益的除外。

Shareholders＇ right of preemption is a special right of formation under company law, which could be excluded through the bylaws of a company. The basic fact of external transfer of equity and the claim for the right of preemption by a holder of such right are the preconditions for the establishment of an equity transfer contract. The claim for the right of preemption by a holder of such right establishes between the transferor and the claimant a contract on the transfer of equity that takes the contract between the transferor and a third person as its content, provided that an agreement has already been reached between the transferor and the third parson on the main terms of the contract on the transfer of equity. As for the contract on the transfer of equity concluded between a transferor and a third party before the claim of the right of preemption is made, its effect is not affected by such claim, although the contract is unable to be implemented. The transfer of equity occurs when a claim for the right of preemption is made by a holder of such right. In circumstances where equity is transferred to a third party and the transfer is registered in the register of shareholders or with an organ in charge of corporation registration without notifying the holder of the right of preemption, the claim for the right of preemption by a holder of such right should in principle have the effect against the third party, unless the registration of the transfer had been made more than three yeas ago or the claim may harm the interest of another person.