股权出资问题研究

《公司法修改草案》将股权纳入出资形式当中,这一做法是值得商榷的。在公司法上,可以作为出资标的物应当符合两项标准:具有确定的价值和可以自由转让。股权作为一项综合性的权利,在不同的公司类型中体现出不同的特征。只有上市公司的流通股和非上市公司的社会公众股能够作为出资标的,而有限责任公司和发起设立的股份有限公司的股权则不宜作为出资标的。并且,《公司法》在承认部分股权可以作为出资的同时,也应当增设相应的救济措施,以弥补股权出资所可能带来的负面影响。

A Study on Shareholders' Equity as Capital Contribution to Other Companies

Although investment of shareholders' equity is not prescribed in the existing Companies Act of the PRC, it is frequently made in practice. Now shareholders' equity is considered as a form of investment in the Amendment to the Companies Act, which deserves discussion. This article holds that the subject matter of an investment must accord with two criteria: having definite value and being transferable without restriction. Shareholders' equity, as a sort of comprehensive bundle of rights, displays different features in different types of companies. By comparing shareholders' equity in companies and contrasting it with the two criteria respectively, this author concludes that only the negotiable stock of listed companies and the public stock of non- listed companies can be taken as the subject matter of investment, while the shares in limited liability companies and stock companies with promoters buying out all shares are not suitable for contribution to investment. Furthermore, while some stocks are permitted to contribute to other companies by the Companies Act, corresponding remedial measures should be implemented to avoid adverse effects.