《民法典》视域下基于夫妻财产约定所致的股权变动研究

A Study on Equity Change Caused by Marital Property Agreement from the Perspective of Civil Code

在家庭场景中,基于夫妻财产约定引致的股权“转让”,与交易场域下市场主体间的股权转让在目的、内容以及利益关系上均有本质区别。《民法典》婚姻财产制度与《公司法》固然在股权变动上存在规则适用之冲突,然而在解释论上亦有消解可能及可供遵循的合适路径。《公司法》第71条第2款限缩性解释,将股东配偶排除在外,不仅符合生活经验事实,而且在比较法上亦有先例可供遵循。除公司章程另有规定的外,基于夫妻财产约定的股权变动,不受其他股东同意权、优先购买权之制约,可以径自在夫妻间移转。然而基于债权形式主义之股权变动模式,股东及其配偶应及时要求公司变更股东名册记载和向公司登记机关申请变更登记,公司应予以协助和配合。

There are essential differences in the purpose,content and interest relationship between the equity"transfer"caused by the agreement of Spousal property in the family scene and the equity transfer between market entities in the transaction field.Although there are conflicts between Civil Code and Company Law in the application of rules in the change of stock rights,there are also some proper ways to eliminate the conflicts in the theory of interpretation.The spouse of a shareholder is not"a person other than a shareholder".Except for the stipulated articles of association,the equity change based on the property agreement shall be transferred directly between husband and wife without being restricted by the consent right and preemptive right of other shareholders.However,based on the equity change mode of creditor's rights formalism,the shareholders and their spouses shall request the company to change the record of the register of shareholders in time and apply for the change registration to the company registration authority,and the company shall provide assistance and cooperation.