日本新股预约权最新发展及适用考察

The Research on Japan's New Share Reservation of the Latest Development and Reference

日本于2001年修改商法时新增了新股预约权制度。2014年,对自2005年起从日本商法中独立出来的公司法进行了最大篇幅的修改,修改时,亦对作为公司法重要制度的新股预约权制度予以完善,新股预约权由此得到新的较大发展,在定价机制、发行程序、转让和变更、权利的取得和消灭等方面形成了比较成熟的运行机制。在商事实务中,该制度已在股票期权、融资、反敌意收购、并购等多个方面展现出明显的优势,但该制度具有的灵活性等特点,使得该制度在实践中存在被滥用的情况,为此,日本近年来构造出相对完善的措施对权利滥用予以救济,也因此积累了较为丰富的案例。新股预约权制度对满足我国企业对新型股权、股票制度的需求亦具有借鉴意义。

The Japanese Commercial Law adopted the new share reservation right system when the Japanese Commercial Law was amended in 2011. In 2014,when the Japanese Company Law, which become independent from Japanese Commercial Law as of 2005, went through the most significant changes, the new share reservation right system was then improved and upon such improvement, the new share reservation right system became a mature system with respect to the pricing system, issuance process, transfer and modification, acquisition and elimination of rights. In the practice of commercial matters, this system also reveals its advantages in the transactions of share option, financing, anti-takeover as well as merger and acquisition. However, such system is also abused in the practice due to some of its features such as flexibility. Measures have been taken recently in Japan to provide indemnifications to the situations where such system is abused, and in practice, there have been a lot of cases in connection with this. The new share reservation right system should also be a good reference to the needs of new types of share rights and new types of stock system of the Chinese enterprises.