公司认可生效主义股权变动模式——以股权变动中的公司意思为中心

Research on the Mode Which Requires Company’s Approval to Take Effect in the Process of Equity Transfer in Limited Companies——A Review from Company’s Intention

立法论与解释论对有限公司股权变动模式的界定不明,引发各级法院同案不同判、类案不类判现象,减损了司法权威。对基于法律行为股权变动模式的规则设计离不开三个维度的考量:股权的社员权本质;股权变动的组织法背景;公司章程限制股权转让条款的执行机制。为此,需要确立公司在股权转让中的独立主体地位与独立意思参与机制。既有的股权变动模式忽略了此点,漠视对公司、其他股东利益的保护,制度成本高昂。公司认可生效模式纠正了上述错误。其主张转让合同生效仅产生债的效力,转让人负有请求公司认可受让人为股东的义务,公司认可的受让人即为股东,得向公司主张股权。只要设计出关于公司认可行为的严格技术性规范,公司滥用认可权损害股权转让自由原则的担忧实无必要。

On the dual level of legislation and interpretation,the mode of equity transfer in limited companies is not clear,which has caused the phenomenon of“similar cases giving different judgments”in the different courts at all levels,the judicial authority was derogated.The design of equity transfer schema is inseparable from the consideration of three dimensions:the members’rights as the essence of equity rights;the background of equity transfer in organization law;and the implementation mechanism of the restrictive clause on equity transfer in corporate charter.Therefore,it is necessary to clarify company’s independent subject status and its intention to participate in the process of equity transfer.However,the existing mode of equity transfer pays no attention to the point stated above,that is why the disregard of protection of the interests of company and other shareholders has led to exorbitant institutional cost.Nevertheless,the mode which requires company’s approval to take effect corrects the above-mentioned mistakes,asserting that the effective contract of equity transfer only produces effect in the law of obligations.The transferor has an obligation to ask company to recognize the transferee as a shareholder,after obtaining company’s approval,the transferee can be deemed as a shareholder which gives transferee the right to claim equity right from the company thereafter.As long as a strict technical specification regarding the conduct of company approval can be designed out,the concern about such a scenario in which company uses its right of approval to harm the freedom of equity transfer would be unnecessary.