論“人走股留”糾紛裁判規則的適用困境與改進

The Applying Dilemma and Improvement of the Adjudication Rules in“Employees Leaving but Shares to Stay”Disputes

有限責任公司“人走股留” 糾紛裁判規則，在資本與治理兩個層面破除了“人走股留”型股權回購的合法性障礙，積極效應顯著。然而，其因財源審查規則缺位，極易導致公司因回購股權而陷入資本維持困境；因股東壓制排除規則精准度不足，未能有效避免公司對員工股東實施“掠奪式回購”。“人走股留”糾紛裁判規則之改進，在資本層面，應區分非减資型回購與减資型回購適用不同的財源審查標準；在治理層面，應以股權激勵自治而非人合性爲依據作目的正當性審查，摒弃初始章程與修訂案二分的授權依據審查邏輯，以員工股權回購或內部轉讓的受限程度爲依據作合比例性審查，以“比例分配規則” 填補公司自治性方案的計價漏洞。在尊重公司章程自治的前提下，最大限度保障員工股東的股東資格不被肆意剝奪，股權轉讓權與公平交易權不被侵犯。

Taking the Supreme People̓s Court̓s Guiding Case No. 96 as the representative, the adjudication rules in “employees leaving but shares to stay” disputes in limited liability companies have broken the legal obstacles of “employees leaving but shares to stay” type of share repurchase at both capital and governance levels, thus resulting in remarkable positive effects. However, the absence of financial resources review rules would easily lead to the company̓s capital maintenance dilemma due to share repurchase; On account of the inadequate accuracy of the shareholders̓ suppression and exclusion rules, it has failed to effectively prevent companies from implementing “predatory repurchase” towards employee shareholders. To improve the adjudication rules in “employees leaving but shares to stay” disputes, at the capital level, non-capital-reduced repurchase should be distinguished from capital-reduced repurchase, thus applying different financial resources examination standards; At the governance level, share incentive autonomy rather than personal nature should be taken as the objective for justification review, and the review logic of authorization basis of dichotomy between the initial articles of association and the amendment should be abandoned. Proportional review should be made based on the restricted degree of employees̓ share repurchase or internal transfer, while “proportional distribution rules” should be used to fill the pricing loopholes of the company̓s autonomous scheme. On the premise of respecting the autonomy of the articles of association, the shareholder qualification of employee shareholders should be protected from being arbitrarily deprived, and the rights of share transfer and fair dealing should be defended from being violated to the maximum extent.