有限责任公司新股先买权规则探析

Research on the Rules of Pre-Emptive Rights on New Shares for Limited Liability Companies

《公司法》第34条对股东新股优先购买权的规定较为简略,修订草案第223条仅对现行法第34条的分红与增资规定进行了拆分,并未对增资时股东新股优先购买权规则进行细化,实务中就有限责任公司新股先买权产生了颇多纠纷。本文基于公司法第34条的解释阐明有限责任公司增资时股东新股先买权的性质、适用条件以及权利行使的方式,明确适用的前提是外来资本进入的情形,内部增资时仅可参照适用该条款。另外,本文从民事权利的角度对新股先买权的行使进行进一步的明确,并且理清新股优先购买权与股权对外转让股东优先购买权二者的差异,得出新股先买权不可被其他股东购买,也不得转让给其他人的结论。

Article 34 of the Company Law has a relatively simple provision on shareholders’ preemption right of new shares, and Article 223 of the revised draft only splits the dividend and capital increase provisions of Article 34 of the current law, but does not elaborate the rules of shareholders’ preemption right of new shares when capital increase. In practice, there are many disputes over the preemption right of new shares of limited liability companies. Based on the interpretation of Article 34 of the Company Law, this paper clarifies the nature, applicable conditions and the way of exercising the right of shareholders to buy new shares in the capital increase of a limited liability company, and makes it clear that the premise of application is the entry of foreign capital, and the provision can only be applied by reference in the internal capital increase. In addition, this paper further clarifies the exercise of the preemptive right of new shares from the perspective of civil rights, and clarifies the difference between the pre-emptive right of new shares and the preemptive right of shareholders who transfer equity to foreign countries, and draws the conclusion that the pre-emptive right of new shares cannot be purchased by other shareholders, nor can it be transferred to others.