日本新股預約權最新發展及適用考察

The Research on Japan's New Share Reservation of the Latest Development and Reference

日本於2001年修改商法時新增了新股預約權制度。2014年，對自2005年起從日本商法中獨立出來的公司法進行了最大篇幅的修改，修改時，亦對作為公司法重要制度的新股預約權制度予以完善，新股預約權由此得到新的較大發展，在定價機制、發行程序、轉讓和變更、權利的取得和消滅等方面形成了比較成熟的運行機制。在商事實務中，該制度已在股票期權、融資、反敵意收購、並購等多個方面展現出明顯的優勢，但該制度具有的靈活性等特點，使得該制度在實踐中存在被濫用的情況，為此，日本近年來構造出相對完善的措施對權利濫用予以救濟，也因此積累了較為豐富的案例。新股預約權制度對滿足我國企業對新型股權、股票制度的需求亦具有借鑒意義。

The Japanese Commercial Law adopted the new share reservation right system when the Japanese Commercial Law was amended in 2011. In 2014, when the Japanese Company Law, which become independent from Japanese Commercial Law as of 2005, went through the most significant changes, the new share reservation right system was then improved and upon such improvement, the new share reservation right system became a mature system with respect to the pricing system, issuance process, transfer and modification, acquisition and elimination of rights. In the practice of commercia1 matters, this system a1so revea1s its advantages in the transactions of share option, financing, anti-takeover as well as merger and acquisition. However, such system is also abused in the practice due to some of its features such as flexibi1ity. Measures have been taken recently in Japan to provide indemnifications to the situations where such system is abused, and in practice, there have been a 1ot of cases in connection with this. The new share reservation right system shou1d a1so be a good reference to the needs of new types of share rights and new types of stock system of the Chinese enterprises.