股东优先购买权的新近发展与规则解析:兼议《公司法司法解释四》

Analysis of the Recent Development and Rules of Shareholders' Preemptive Right:Discussion on Judicial Interpretation of Company Law Ⅳ

我国《公司法》第71条规定了有限责任公司股东在股权转让中的优先购买权,此举虽系从维护有限责任公司的人合性出发,但由于规则本身的复杂性以及司法适用的模糊性,一直以来长期为理论界和实务界所诟病。2017年9月开始实施的最高人民法院《公司法司法解释四》(简称"解释四"),细化了股东优先购买权的若干规则,一定程度上解决了实践中的疑难问题。尽管如此,优先购买权是我国公司法所特有的规定,域外发达国家或地区均无相同规则。股东优先购买权可能成为其他股东为发现合适购买价格的一种定价机制。该权利是否能够发挥其原有的作用乃至是否有必要保留,存有疑问。

Article 71 of the Company Law in China stipulates that the shareholders of a limited liability company have right of preemptive in the transfer of shares. This stipulation is based on the maintenance of the human rights of the limited liability company. Due to the complexity of the rules and the administration of justice, its ambiguity has long been criticized by both theoretical and practical fields. The Judicial Interpretation of the Company Law IV(referred to as Explanation IV) issued by The Supreme People's Court in September 2017 has adjusted certain rules for shareholders' rights of preemption and solved the difficult problems in practice to some extent. In spite of these, preemptive rights serve as unique stipulation of the company law in China, and there are no identical rules in the developed countries or other regions. The preemptive rights of shareholders will become a price mechanism for other shareholders to find a suitable purchase price. Whether this right could play its original role or even if it is necessary to remain is still in doubt.