【作者】 张志红；

【导师】 孙玉芝；

【作者基本信息】 山东大学 ， 法律， 2011， 硕士

【摘要】 由于立法对股东配偶在股权转让中享有的权利并没有详细的规定,导致了法官在审理这种类型的案件中无所适从。股东配偶享有权利存在法律基础,即我国2005年《公司法》就有限责任公司的股权转让增设的“公司章程对股权转让另有规定的,从其规定”的授权性条款；同时,股东在行使股权自由转让的权利时,不仅要符合公司法的规定,也要合理,不能侵犯配偶的利益,否则极易影响到夫妻共有财产的增减。在适当的条件下赋予转让股权的股东配偶适当的权利存在合理性基础。借鉴大陆法系代表国家的立法,可赋予股东配偶同意权、优先购买权和撤销权等权利对股权转让进行限制。同时,为避免赋予股东配偶权利后造成权利的滥用,有必要给行使权利的股东配偶以限制,应坚持三项基本原则：不得禁止股权流通；不得为不合理限制；不得强制转让股权。笔者以有限责任公司股权转让中因股东遵循自由转让原则而侵犯股东配偶的利益的案例入手,探讨股东转让股权应受到配偶限制的法律基础,并结合股权转让的相关理论、主要国家的相关规定及我国的立法态度,分析股权转让中股东配偶应享有的权利及其保障问题,比较深入全面地对股权转让中股东配偶的权利保障进行了研究,主要内容如下：第一部分为股权转让中股东配偶权利保护问题的提出。笔者在司法实务中遇到了两个关于股权转让的典型案例,该案例在适用法律的过程中,遭遇了婚姻法和公司法的博弈,对股权自由转让原则提出了挑战,从司法实务上提出应对股权转让中股东配偶权利进行保护。第二部分为股东配偶享有权利的法律基础。笔者认为股东在行使股权自由转让的权利时,不仅要符合公司法的规定,也要符合物权法、婚姻法的规定,否则极易影响到夫妻共有财产的增减。同时,股东配偶权利保障与股权自由原则并不违背。第三部分为股权转让中股东配偶权利保护的适度性。认识到有限责任公司股权转让中股东配偶权利保护的合理性,同时深刻把握保护的适度性,这是本文上述部分研究的指导原则。本章是在第二章适度限制的理念的指导上,从股东配偶享有权利应遵守的最基本层面研究了怎样把握有限责任公司股权转让限制的“度”和边界,避免赋予股东配偶权利后造成权利的滥用,因此,股东配偶行使权利时应遵守不得禁止股权流通、不得为不合理限制、不得强制转让股权三项基本原则。第四部分为股权转让中股东配偶权利保障制度构建。笔者根据主要国家和地区股权转让限制的立法例,并结合相关部分中国《公司法》的规定进行了比较,构建出有限责任公司股权转让中股东配偶权利内容、行使条件,并对股东配偶权利保障的途径提出自己的见解。第五部分为本文的结语部分。更多还原

【Abstract】 Because of no detailed provisions in the legislation for the rights of the spouses of shareholders in equity transfers, it has led to that the judges can not know what to do in the hearing this type of cases. It has legal basis for the shareholder spouses’ rights and it means that the authorized clause of "It will comply with the rules that has been specified otherwise in the articles of association" which had been added in the Companies Act 2005 edition for the equity transfers of limited liability company; Meanwhile, not only must it comply with the provisions in the Companies Act, but also it must be reasonable. It can not infringe upon the interests of the spouses of shareholders. Or else, it is extremely easy to touch the increase and decrease of community property. Under suitable conditions, it has the basis of rationality for empowering appropriate rights to the spouses of shareholders who has equity transfers.Drawing lessons from the legislation of the states in the continental law system, the equity transfers have been restricted by the endowed rights to the spouses of shareholders including the agree right, right of preemption, right of claiming cancellation and others. Meanwhile, it is necessary to take restriction to the spouses of shareholders with the rights to avoid misusing the rights after endowing that to them. And so that it should insist in three basic principles:equity transfers must not be prohibited, it must not have unreasonable restrictions and it must not be forced to make an equity transfer.The writer has started with the case examples of that the shareholders had infringed upon the interests of their spouses because of following the principle of free transfer in the equity transfers of limited liability companies to discuss the rationality and legal basis of that the equity transfers of shareholders should be restricted by their spouses, analyzed the enjoyed rights and security of the spouses of shareholders in equity transfers by combining the related theory of equity transfers, the relevant provisions of the main countries and our country’s attitude of legislation, and made a more thorough and comprehensive study for the right protection of the spouses of shareholders in equity transfers. It has a main content as following:It is in the first part to propose the problems to protect the rights of the spouses of shareholders in equity transfers. The writer has ever dealt with two typical cases about equity transfers in the judicial practices. During the course of law application, it had met with the game of the Marriage Law and the Companies Act which have raised a challenge to the principle of free equity transfers and suggested that it should protect the rights of the spouses of shareholders in equity transfers in the judicial practices.It is the legal basis for the enjoyment right of the spouses of shareholders. The writer thinks that his action will be according to the provisions of the property law and the marriage law as well as the company law. Otherwise, it will influence the increase and decrease the joint property of husband and wife easily. At that time, the right protection of the spouses of shareholders is not against to the liberty principle of equity.It is the moderation for the right protection of the spouses of shareholders in equity transfers in the third part. It is the guiding principle to study the aforementioned part of this article to realize the rationality to the right protection of of the spouses of shareholders in equity transfers and deeply hold the moderation of right protection simultaneously. With the direction of idea about moderate limit in the second chapter and in this chapter, it has studied how to hold the "limit" and borderline of the restrictions in the equity transfers of limited liability companies and avoid misusing the rights after endowing that to the spouses of shareholders. So, the spouses of shareholders should insist in three basic principles of equity transfer must not be prohibited, it must not have unreasonable restrictions and it must not be forced to make an equity transfer.It is in the forth part to build the security system of the rights for the spouses of shareholders in equity transfer. According to the legislative patterns for the limit of equity transfers of the main countries and regions and comparing with some parts of provisions in the Companies Act of PR. China, the writer has built the content of rights and exercise conditions of the spouses of shareholders in the equity transfer of limited liability companies and put forward my own views for the way of the right security of the spouses of shareholders.It is the conclusion of this article in the fifth part.更多还原