股权激励方案落地执行
十年股权整理解决方案落地实施

相关规定中"公司章程对股权转让另有规定的,从其规定",赋予了公司章程对股权转让进行特殊规定的空间,公司章程对股权转让的转殊规定主要包括三种类型:

In the relevant regulations, if there are other provisions on equity transfer in the company's articles of association, they provide space for special provisions on equity transfer in the company's articles of association. The special provisions on equity transfer in the company's articles of association mainly include three types:

一、禁止转社规定,指在实体上或程序上能够产生禁止转让后果的态零规定,如"公司股份须经股东会一致同意方可转让""股东人股后不得对外转让股权"等:

1、 The prohibition of transferring shares refers to the state zero regulations that can result in the prohibition of transfer in terms of entity or procedure, such as "the company's shares must be unanimously agreed upon by the shareholders' meeting before being transferred" and "the shareholder's shares cannot be transferred to the outside world"

二、强制转让规定,指股东在一定条件下必须转让股权的规定,如"脚东在高职、退体、调离等情况下必须将股份转让给公司或其他股东"等:

2、 Compulsory transfer regulations refer to the provisions that shareholders must transfer their equity under certain conditions, such as "Jiaodong must transfer its shares to the company or other shareholders in the event of high vocational education, withdrawal, transfer, etc.":

三、其他限制转让规定,比如"公司高管转让股份的比例和时间限制""征求其他股东同意及放弃优先购买权的方式、时间"等.

3、 Other transfer restrictions, such as "the proportion and time limit for the transfer of shares by company executives", "the method and time for obtaining the consent of other shareholders and waiving the right of first refusal", etc

实践中因违反公司章程的规定而引起的股权转让纠纷,由于相关法规文件规定的欠缺,导致存在较大的解释空间;在判断公司章程对股权转让特殊规定的效力时,一方面要考虑公司章程的性质;另一方面也要考虑该项条款的届性,综合对其效力进行认定.具体而言:

In practice, disputes over equity transfer caused by violations of the company's articles of association have significant room for interpretation due to the lack of provisions in relevant regulatory documents; When judging the effectiveness of the special provisions on equity transfer in the company's articles of association, on the one hand, the nature of the company's articles of association should be considered; On the other hand, the validity of this clause should also be considered, and its effectiveness should be comprehensively evaluated. Specifically:

关于公司章程的性质

Regarding the nature of the company's articles of association

一般认为,初始章程是全体投资人的一致意思表示,对全体投资人有约束力,不仅具有公司自治规范的性质,也具有合同的性质(瑕疵出资股东的违约责任即源于此);而公司成立后经资本多数决原则通过的修订章程,本质上已经不完全是合同,异议股东的意思表示没有在修订章程中体现,虽然有关组织行为的规范仍然适用于全体股东,但涉及私权处分的条款不应对异议股东有约束力,否则,就相当于给股东设定了新义务;此时公司章程更多体现的是内部自治规范的性质,合同性相比较初始章程已经弱化但对于原始股东仍具有强合同性,因此,初始章程和修订章程的区分,是确定章程限制性规定的效力时需要遵循的主线.

It is generally believed that the initial articles of association are a unanimous expression of the will of all investors, which is binding on all investors. They not only have the nature of a company's autonomous regulations, but also have the nature of a contract (the liability for breach of contract of defective shareholders is derived from this); The revised articles of association adopted by the majority of capital after the establishment of the company are essentially not entirely contracts, and the expressions of dissenting shareholders have not been reflected in the revised articles of association. Although the norms related to organizational behavior still apply to all shareholders, provisions involving private rights disposal should not be binding on dissenting shareholders. Otherwise, it is equivalent to setting new obligations for shareholders; At this point, the company's articles of association more reflect the nature of internal autonomy norms. Compared to the initial articles of association, the contractual nature has weakened, but it still has strong compatibility with the original shareholders. Therefore, the distinction between the initial articles of association and the revised articles of association is the main line that needs to be followed when determining the effectiveness of restrictive provisions in the articles of association

关于禁止转让条款的效力

The Effectiveness of Prohibited Transfer Provisions

股权转让权是私权,股东有处分的自由如果公司设立之初,全体股东为了维持公司的人合性,初始章程中规定禁止转让股权,者认为是有效的,种情况下投资者若不认同这种规则,可以选择不参与公司设立,没有影响第三方利益或者公序良俗,事人之间的约定应当被尊重;是公司设立后,虑到资本多数决原则对公司章程修订的影响,表决结果体现的是团体意思,议股东的意见可能得不到尊重,此禁止转让股权条款对异议股东应是无效的,对同意章程修改的股东应当有效,则有违诚实信用原则.

The right to transfer equity is a private right, and shareholders have the freedom to dispose of it. If, at the beginning of the establishment of a company, all shareholders, in order to maintain the company's human rights, stipulated in the initial articles of association that the transfer of equity is prohibited, it is considered effective. In such cases, if investors do not agree with this rule, they can choose not to participate in the establishment of the company, without affecting the interests of third parties or public order and good customs, and the agreements between the parties should be respected; After the establishment of the company, considering the impact of the capital majority principle on the revision of the company's articles of association, the voting results reflect the collective will, and the opinions of the shareholders may not be respected. This prohibition on the transfer of equity clause should be invalid for dissenting shareholders, and effective for shareholders who agree to the revision of the articles of association, which violates the principle of good faith

关于强制转让条款的效力

On the Effectiveness of Compulsory Transfer Terms

此类条款在司法实践中争议很大,同地区不同级别法院的理解大相径庭,权转让权是固有权,股东本人外.他第三方包括公司都不得剥夺,认定此类条款的效力应当遵循与禁止转让条款相同的原则,初始章程可以有效,改后的章程只对同意章程修改的股东有效,异议股东无效;另外,要考虑此类条款是否充当了大股东排挤小股东的工具、股东转让股权是否将从根本上改变公司存续的能力和基础、是否违背公序良序原则等,判断强制转让条款的效力.

Such clauses are highly controversial in judicial practice, and the understanding of different levels of courts in the same region is vastly different. The right to transfer rights is an inherent right, which cannot be deprived by any third party, including the company, except for the shareholders themselves. The validity of such clauses should follow the same principles as the prohibition of transfer clauses. The initial articles of association can be valid, and the modified articles of association are only valid for shareholders who agree to the modification of the articles of association, while the dissenting shareholders are invalid; In addition, it is necessary to consider whether such clauses serve as a tool for major shareholders to exclude minority shareholders, whether the transfer of equity by shareholders will fundamentally change the company's ability and foundation for survival, and whether it violates the principle of public order and good order, in order to determine the effectiveness of mandatory transfer clauses

关于股权转让价格规定条款的效力

The Effectiveness of Provisions on Equity Transfer Prices

如果公司章程中规定,东转让股权时应当按照注册资本确定转让价格,类规定是否有效?对此，我国相关规定目前未作明确，从公平的角度讲，似乎应认定该规定"失公平"从而认定其可撤销更符合公平原则;在不存在欺诈、胁迫、乘人之危等导致结果显失公平的情况下,应认定关于股权转让价格的强制性规定显失公平;除了存在显失公平导致合同撤销的情形以外,司章程对股权转让价格的规定,使存在股权转让价格偏低的问题,果是初始章程的约定,东也应当遵守,如果是修订章程的规定,转让股东在对章程修正案进行表决时没有提出异议的,也应当遵守;此处的判断逻辑与上述禁止转让条款是一致的.

If the company's articles of association stipulate that the transfer price should be determined based on the registered capital when transferring equity, is this provision valid? Regarding this, the relevant regulations in our country are currently not clear. From a fair perspective, it seems that the provision should be deemed "unfair" and therefore deemed revocable, which is more in line with the principle of fairness; In the absence of fraud, coercion, or taking advantage of other factors that result in unfair outcomes, it should be recognized that mandatory provisions on equity transfer prices are clearly unfair; In addition to situations where the contract is revoked due to obvious unfairness, the provisions of the company's articles of association on the transfer price of equity may lead to the problem of lower transfer prices. If it is the initial provisions of the articles of association, the company should also comply with them. If it is a provision for amending the articles of association, and the transferring shareholder does not raise any objections when voting on the amendment to the articles of association, they should also comply with it; The judgment logic here is consistent with the above prohibition of transfer clause

本文由山东股权设计提供技术支持，更多的详细精彩内容请点击我们的网站http://www.lushangyun.com，我们将会全心全意为您提供满意的服务。

This article is provided with technical support by Shandong Equity Design. For more detailed and exciting content, please click on our website http://www.lushangyun.com We will wholeheartedly provide you with satisfactory service.