股份回赎制度独立构造论

Independent Construction Theory of Stock Redemption System

基于章程约定、投融资双方意思自治的股份回赎与股份回购并不是包含关系,二者彼此独立。在学理层面,两者的法律属性、触发条件、产生的法律后果存在本质区别;在制度层面,两者的功能定位、程序设置、利益冲突协调规则迥异。股份回赎可按照交易结构类型化为强制回赎、股东任意回赎和公司任意回赎。在立法技术上,应以股份公司为适用主体构建回赎与回购的共同性规则,针对有限公司作专门性规定,从程序规则和实体规则两个维度实现回赎制度的体系化构建。

Based on the provisions of the articles of association and the autonomy of the parties involved in the investment and financing,share redemption and share repurchase do not have an overlapping inclusive relationship but are independent of each other.The legal attributes,triggering conditions,and resulting legal consequences of the two have essential differences at the theoretical level.At the institutional level,their functional positioning,procedural arrangements,and rules for coordinating conflicting interests are significantly different.Share redemption can be classified according to the transaction structure into mandatory redemption,discretionary redemption by shareholders,and discretionary redemption by the company.In terms of legislative techniques,the systematic construction of the redemption system should be achieved by establishing common rules for redemption and repurchase applicable to share companies and specific provisions for share redemption by limited companies,from both procedural and substantive rule perspectives.