夫妻共有股权行使的困境及其应对——兼论商法与婚姻法的关系

夫妻共有股权行使纠纷在近年来引发广泛关注。我国夫妻共有股权行使的内容既包括资产收益权、管理性权利等基本权能,也包括处分权。婚姻法与商法规范在夫妻共有股权行使条件上存在差异,前者强调夫妻双方"一致意见",后者要求由公示方行使股权。将不同行使主体、条件和内容进行组合,行使效果存在明显区别,其中公示方擅自处分共有股权的法律效果引发了较大争议。商法和婚姻法规范既有交集也有差异,在法律适用上存在规范竞合。为解决夫妻共有股权行使过程中遇到的问题,需要更精细化的规则:第一,在公示上实现商法与婚姻法兼容;第二,在管理权行使上,商法规范具有特殊性,应当优先适用;第三,在行使处分权尤其是公示方擅自处分股权的问题上,婚姻法要求的夫妻一致意见具有特殊性,应当将商法与婚姻法综合运用以完善现有规则;第四,针对公众公司股权行使应保障商法优先。

Dilemma of Exercise of Equity Jointly Owned by Husband and Wife and Its Countermeasures:Concurrently Discussing Relation Between Commercial Law and Marriage Law

The disputes over the exercise of the equity jointly owned by husband and wife have attracted attention in recent years.The content of the exercise of the equity in China includes not only the right of asset income and management,but also the right of disposition.There is a difference between the marriage law and the commercial law in the conditions of the exercise of the equity,the former emphasizes the"agreement"of both husband and wife,and the latter requires that the party who gets the public summons can exercise the equity.Combining the different exercise subjects,conditions and contents,there is a clear difference in the exercise effect,in which the legal effect of the public summons party's unauthorized disposal of the jointly owned equity causes a great deal of disputes.There is both intersection and difference between commercial law and marriage law,and there is concurrence in the application of them.Compared with the other,they have particularity on some issues.In order to solve the problems encountered in the exercise of the jointly owned equity,more detailed specific rules are needed.First,we should strive to achieve compatibility between the two laws on public summons.Second,about the exercise of the administrative rights,the rules of commercial law is special and should be applied as a priority.Third,about the exercise of the right of disposition,the"agreement"of husband and wife required by marriage law is special,especially in the issue of unauthorized disposition of equity by the public summons party,so the two laws should be comprehensively applied to improve the existing rules.Forth,we should ensure the priority in commercial law for the exercise of public companies'equity.