股权保留买卖与优先购买权

Equity Retention Sales and Pre-Emption Rights

股权作为具有财产性质的权利,若其能成为所有权保留买卖合同之标的物,有激励商事交易、促进经济效力之作用。在公司法上,股东所有权登记是权利行使之前提和权利变动之公示,但此登记或会与所有权保留登记相冲突,为缓和此冲突,以功能主义立场,消除所有权保留登记之所有权归属涵义,使其仅具对抗善意第三人之效力。在股份所有权保留买卖的设立和实现过程中,有股权让与行为之存在,此时股东优先购买权应发挥其规范效力:设立过程中应在买受人完成股东登记前发挥效力,实现过程中应在买受人不回赎标的物的情形下发挥效力。

Equity, as a property right, if it can serve as the subject matter of a secured ownership retention agreement in sales contracts, plays a role in incentivizing commercial transactions and promoting economic efficiency. In corporate law, shareholder ownership registration serves as a precondition for exercising rights and as public notice of changes in rights. However, this registration may conflict with the registration of ownership retention. To mitigate this conflict, a functionalist approach should be adopted to eliminate the ownership attribution implications of ownership retention registration, making it effective only against bona fide third parties. In the establishment and implementation of equity retention in stock sales, there is the existence of equity transfer actions, during which the shareholder’s preemptive purchase right should play a normative role: during the establishment process, it should be effective before the buyer completes shareholder registration, and during the implementation process, it should be effective in cases where the buyer does not redeem the subject matter.