有限公司中的强制购买股权——以《公司法》第89条第3款为中心

Compulsory Acquisition of Shares in Limited Liability Company: An Analysis of Article 89 (3) of the Chinese Company Law

为更有效应对有限公司中的股东压制,修订后的《公司法》第89条第3款增设因控股股东滥用股东权利,遭受严重损害的股东可以诉请强制购买股权的规定。该制度旨在规制股东权利滥用并救助受压制股东,应与该条第1款之异议股东回购请求权区分开来。受压制股东诉请强制购买股权救济时,法院需要逐一判断控股股东是否构成滥用股东权利、小股东利益是否遭受侵害以及损害是否足够严重。受保护的股东利益不仅明定于公司章程或者股东协议,还可能存在于股东间的非正式共识。法院在确定“合理价格”时,可以考虑引入限时调解机制促使当事人协商定价,在当事人协商不成时,应当基于公平合理之内在要求确定评估基准日和评估方法,并原则上不考虑折价。为落实该条规范意旨,法院应对责任主体、法律效果以及权利主体等三个方面进行扩张解释。

To more effectively deal with shareholder oppression in limited liability companies, Article 89(3) of the newly revised Chinese Company Law provides that shareholders who have suffered serious damage due to the abuse of shareholder rights by controlling shareholders can apply for compulsory acquisition of shares. In common law, this remedy is also known as “buy-out order” or “buy-out remedy”. Because of its institutional purpose to regulate the abuse of shareholder rights and protect oppressed shareholders and its constituent elements and legal effects different from those of the dissenting shareholder appraisal right prescribed in paragraph 1 of this article, this remedy should be distinguished from the dissenting shareholder appraisal right. In legal interpretation theory, this distinction means that legal dogmatics should be independently constructed for Article 89(3). When oppressed shareholders sue for compulsory purchase, the court needs to determine whether the controlling shareholder's act constitutes an abuse of shareholder rights, whether the interests of minority shareholders have been infringed upon, and whether the damage is serious enough: the controlling shareholder' abuse refers to the illegality of his or her behavior, which can be determined by “subjective illegality”, “direct violation of law”, or “superficial legality but substantial breach of fiduciary duties”;the protected interests of shareholders are not only explicitly defined in a company's article of association or shareholder agreement but may also exist in the informal understanding among shareholders;and “serious damage” means that minority shareholders' interests have been damaged to such an extent that they would not be sufficiently protected unless compulsory acquisition of their shares is ordered. When determining a “reasonable price”, the court may consider adopting a time-limited mediation mechanism to encourage the parties to negotiate. When the parties cannot reach an agreement, the benchmark date and the method of evaluation should be determined based on the inherent requirement of fairness and reasonableness, and discount should not be considered in principle. But if there is an agreement between the parties on price, the agreement should be followed in principle. To implement the normative intention of this provision, the court should expansively interpret the responsible party, the legal effect, and the subject of right: a shareholder should be allowed to request the court to order the controlling shareholder to undertake its compulsory purchase liability;minority shareholders should be allowed to sue for compulsory purchase of controlling shareholder's shares;and a shareholder should be allowed to sue for compulsory acquisition of shares against a non-controlling shareholder' abuse of shareholder rights. In specific cases, the court should, based on the analysis of the aforementioned three elements, contextually judge whether and how to expand the application of Article 89(3).