我國類別股立法的路徑選擇

Legislation Path Selection of Classes of Stock in China

類別股指經由公司股權各項子權利分離重組而創設的，權利內容各異的股份。系類別股法律規範與契約安排協作之產物。類別股立法干預之核心，在於恰當設置類別股章程自治之邊界。如果強調類別股具有合同法框架中的契約性權利性質，則生成章程自治式類別股立法路徑；如果著重類別股具有公司法視闕下的法定化權利性質，則形成類別法定及子權利法定兩種法定主義式類別股立法路徑。在深入分析類別股種類及立法選擇的基礎上，應區分公司形態，將三種類別股立法路徑分別適用於封閉公司、非上市公眾公司及上市公司。如果資本市場對類別股資源的需求與既定的類別股法律規則產生斷層，則類別股契約自治將以一種自下而上的回應力量，推動類別股立法向趨於公司自治的方向循序演進。

Setting up as the cooperative products of legal norms and contract arrangements, Classes of Stock are stocks with different content rights which are created by separating and combining various sub-rights of equities. The essence of interference conducted by legislation of classes of stock is how to set the boundary of charter autonomy of classes of stock. When emphasizing the nature of contractual rights of classes of stock under the view of contract law, charter autonomy type legislation route of classes of stock emerges; When emphasizing the nature of legalization rights of classes of stock under the vision of company law, there emerges two legislation routes of classes of stock as categories defined by law and sub-rights defined by law. Based on analyzing the categories of classes of stock and the types which law chooses from them, it is suggested that the three types of legislation of classes of stock routes mentioned above should be applied to different kinds of company forms as private company, non-listed public company and listed company. If the need for classes of stock from the capital market cannot be satisfied by the species that permitted by the established legal rules of classes of stock, then the contract arrangements of classes of stock would act as an responsive force from bottom to top, gradually promoting the legislation of classes of stock toward the direction of company autonomy.