再析有限公司股权对外转让中的优先购买权

Reanalysis of the Right of Pre-emption in the External Transfer of Stock Rights of Limited Companies

《公司法司法解释(四)》对之前学界关于有限责任公司股权对外转让中的优先购买权问题的诸多争论作出了回应,但同时又引发了一些新的问题,为此,有必要对优先购买权在司法解释新规的基础上重新认识。股权对外转让双重条件限制的结构仍然得到了坚持,但由于两种条件效果上的重合,有必要改为二选一的结构。侵犯优先购买权只会导致股权转让合同的不能履行而非无效,学界的主流观点得到了肯定,尽管并没有在条文中明示。对于转让股东“反悔权”的认可,实际上确认了优先购买权为请求权的性质,但从优先购买权的立法目的来看,将其认定为形成权更为适当。

“Judicial Interpretation of Company Law (IV)”has responded to the previous academic debate on the right of first refusal in the external transfer of limited liability company equity, but at the same time caused some new problems. Therefore, it is necessary to re-understand the right of first refusal on the basis of the new rules in judicial interpretation. The structure of dual conditional restriction on the external transfer of stock rights is still maintained, but due to the effect overlap of the two conditions, it is necessary to change to the two-option structure. The infringement of the right of first refusal will only lead to the non-performance of eq. uity transfer contract rather than invalidity. The mainstream view of the academic circle is affirmed, although it is not explicitly expressed in the article. In fact, the recognition of the transfer of shareholders’regret rights confirms the nature of the right of first refusal as claim right, but from the perspective of the legislative purpose of the right of first refusal, it is more appropriate to regard it as formation right.