相關規定中"公司章程對股權轉讓另有規定的,從其規定",賦予了公司章程對股權轉讓進行特殊規定的空間,公司章程對股權轉讓的轉殊規定主要包括三種類型:

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、禁止轉社規定,指在實體上或程序上能夠產生禁止轉讓后果的態零規定,如"公司股份須經股東會一致同意方可轉讓""股東人股后不得對外轉讓股權"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、強制轉讓規定,指股東在一定條件下必須轉讓股權的規定,如"腳東在高職、退體、調離等情況下必須將股份轉讓給公司或其他股東"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、其他限制轉讓規定,比如"公司高管轉讓股份的比例和時間限制""征求其他股東同意及放棄優先購買權的方式、時間"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

實踐中因違反公司章程的規定而引起的股權轉讓糾紛,由于相關法規文件規定的欠缺,導致存在較大的解釋空間;在判斷公司章程對股權轉讓特殊規定的效力時,一方面要考慮公司章程的性質;另一方面也要考慮該項條款的屆性,綜合對其效力進行認定.具體而言:

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:

關于公司章程的性質

Regarding the nature of the company's articles of association

一般認為,初始章程是全體投資人的一致意思表示,對全體投資人有約束力,不僅具有公司自治規范的性質,也具有合同的性質(瑕疵出資股東的違約責任即源于此);而公司成立后經資本多數決原則通過的修訂章程,本質上已經不完全是合同,異議股東的意思表示沒有在修訂章程中體現,雖然有關組織行為的規范仍然適用于全體股東,但涉及私權處分的條款不應對異議股東有約束力,否則,就相當于給股東設定了新義務;此時公司章程更多體現的是內部自治規范的性質,合同性相比較初始章程已經弱化但對于原始股東仍具有強合同性,因此,初始章程和修訂章程的區分,是確定章程限制性規定的效力時需要遵循的主線.

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

關于禁止轉讓條款的效力

The Effectiveness of Prohibited Transfer Provisions

股權轉讓權是私權,股東有處分的自由如果公司設立之初,全體股東為了維持公司的人合性,初始章程中規定禁止轉讓股權,者認為是有效的,種情況下投資者若不認同這種規則,可以選擇不參與公司設立,沒有影響第三方利益或者公序良俗,事人之間的約定應當被尊重;是公司設立后,慮到資本多數決原則對公司章程修訂的影響,表決結果體現的是團體意思,議股東的意見可能得不到尊重,此禁止轉讓股權條款對異議股東應是無效的,對同意章程修改的股東應當有效,則有違誠實信用原則.

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

關于強制轉讓條款的效力

On the Effectiveness of Compulsory Transfer Terms

此類條款在司法實踐中爭議很大,同地區不同級別法院的理解大相徑庭,權轉讓權是固有權,股東本人外.他第三方包括公司都不得剝奪,認定此類條款的效力應當遵循與禁止轉讓條款相同的原則,初始章程可以有效,改后的章程只對同意章程修改的股東有效,異議股東無效;另外,要考慮此類條款是否充當了大股東排擠小股東的工具、股東轉讓股權是否將從根本上改變公司存續的能力和基礎、是否違背公序良序原則等,判斷強制轉讓條款的效力.

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

關于股權轉讓價格規定條款的效力

The Effectiveness of Provisions on Equity Transfer Prices

如果公司章程中規定,東轉讓股權時應當按照注冊資本確定轉讓價格,類規定是否有效?對此，我國相關規定目前未作明確，從公平的角度講，似乎應認定該規定"失公平"從而認定其可撤銷更符合公平原則;在不存在欺詐、脅迫、乘人之危等導致結果顯失公平的情況下,應認定關于股權轉讓價格的強制性規定顯失公平;除了存在顯失公平導致合同撤銷的情形以外,司章程對股權轉讓價格的規定,使存在股權轉讓價格偏低的問題,果是初始章程的約定,東也應當遵守,如果是修訂章程的規定,轉讓股東在對章程修正案進行表決時沒有提出異議的,也應當遵守;此處的判斷邏輯與上述禁止轉讓條款是一致的.

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

本文由山東股權設計提供技術支持，更多的詳細精彩內容請點擊我們的網站http://www.lfttpm.com，我們將會全心全意為您提供滿意的服務。

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