选择性股权回购中的股东平等保护

    Protection of Shareholder Equality in Selective Share Repurchase

    • 摘要: 为保护选择性股权回购可能损害被排除回购股东的利益,应强调股东平等原则并保护全体股东对公司持续经营的信赖。为此,应引入选择性股权回购正当性评价的实质审查标准,包括区别对待股东的理由正当、回购股份估值公平、回购不损害全体股东对公司持续经营信赖;可以在选择性回购时的股东会一致决、排除被回购后的股东特别多数决或者其他股东回购加入请求权等方案中选择其一,完善选择性回购时的特殊决策机制。中国应在公司法的立法层面回应特殊决策机制,在公司法的司法层面特别关注实质审查标准。

       

      Abstract: Selective share repurchase is common in practice. Such repurchase is likely to damage the interests of creditors, but also easily lead to conflicts of interest between shareholders . In order to protect the interests of shareholders, it is necessary to follow the principle of equality of shareholders, and to protect all shareholders’ trust in the company’s being a going concern. Following these principles, we should conclude the standards to evaluate the legitimacy of selective repurchase, these include the selective repurchase has a reasonable business purpose, the valuation of shares is fare, and the company should continue to be a going concern after the repurchases. In order to improve the efficiency of the protection of shareholders’ interests, we should introduce a special resolution procedure. This requires that China’s Company law should provide special decision-making rules for selective repurchase. And the court should examine whether there is abuse of shareholders’ rights in selective repurchase from the three aspects of substantive review.

       

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