摘要
《公司法司法解释三》第27条第1款规定"一股二卖"纠纷应参照适用善意取得规则。但股权与物权变动模式相去甚远,股权登记对抗主义与善意取得制度亦抵牾颇多,股权多重转让参照适用善意取得规则将面临适用上的窘境。为增进法律体系的和谐并促进股权登记、鼓励诚信,第27条的修正适用需在登记对抗主义的前提下寻求先买人和第三人之间的利益均衡点。由于我国现阶段股权外观效力的缺陷,股权多重转让中更需注重对先买人利益的保护,并妥当刻画先买人的可归责性标准与第三人的"善意"标准。可归责性标准可以在个案中具体衡量,第三人"善意"标准可以从承担有限的调查义务逐步过渡到善意推定,再到登记对抗主义,逐步消解善意取得对登记对抗的制度异化和干扰。
Abstract： According to Paragraph 1 of Article 27 of Judicial Interpretation Ⅲ of Company Law, the people＇s court shall refer to the application of bona fide acquisition rule when handling the disputes over multiple equity transactions. However, this application would create unnecessary troubles. Moreover, equity registration confrontation doctrine conflicts with bona fide acquisition rule in many ways. First of all, applying bona fide acquisition rule, which typically is applicable in the field of real property, to the field of equity transactions may face difficulties. Article 32 of the Company Law constitutes the legal basis for changes in equity interests, according to which, changes in equity interests follow the rule model of ＂the company＇s approval ＋ registration confrontation. ＂ This is significantly different from the changes in the real property ownership. In addition, the abuse of the bona fide acquisition rule in the field of equity changes might lead to confusion of third party in terms of ascertaining the time node. Due to the particularity and complexity of the equity changes, neither referring to the delivery of movable property nor the registration of real property can be logically consistent. In addition, there are conflicts between the two sets of rules. Bona fide acquisition rule hinges upon the theory of right appearance, aiming to safeguard transaction security. The premise of the application of bona fide acquisition rule is ex right disposition, third party＇s good faith as well as trustworthiness of right appearance. However, equity registration confrontation rule acts more as a trading rule, aiming to promote equity registration and implementing effectiveness of registration. Accordingly, the nominal registrant who transfers the equity in multiple transactions still have the right to dispose the equity, and consequently the third party does not need to be bona fide during the transaction. Additionally, under Chinese law, equity register and stock ledger are not reliable eno
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2017年第4期185-196,共12页
Journal of Zhejiang University:Humanities and Social Sciences
关键词
股权多重转让
登记对抗主义
善意取得
修正适用
interference of bona fide acquisition rule progressively. multiple equity transactions
registration confrontation doctrine
bona fide acquisition of equity
modified application
