系列性权利组合:有限责任公司股东优先购买权性质新探

股东优先购买权体现出有限责任公司人合性与资合性之间的冲突。中国对于股东优先购买权的法律规范存在缺陷,其根本原因在于缺乏一套体系性的股东优先购买权理论。股东优先购买权本质上是系列性权利组合,而非单一的权利,具体包括资格维持请求权、告知请求权、强制缔约权和优先受领权。股东于其取得股东身份时取得优先购买权,并于此时得以行使。至于优先购买权的行使期限,则不宜做过多理论上的探讨,而应当交由立法者根据本国国情加以规定。

The Combination of Rights： The Discussion on the Pre-emptive Right in Limited Liability Company

The pre-emptive right, as a restriction of the transferability of share, reflects the conflicts between member-based feature and the assets-based feature of the limited liability company. The statutory in China involving pre-emptive right is defective, which results from the lack of systematical theory. It is unreasonable to deem the pre-emptive right as an expectant right, right of formation, real estate right or obligation right. Naturally speaking, the pre-emptive right is a combination of series of rights, while not a single right, including the right to maintain the entitlement, the right to be informed, the right to compulsorily establish a contract and the right to acceptance of share preferentially. The pre-emptive right is emerged and exercised with the achievement of entitlement of shareholder. The exercise period shall be stipulated by legislators with the consideration of their own national condition, but not discussed theoretically.