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对于侵害股东优先购买权的股权转让合同的效力,历来是有争议的。在无效说、可撤销说、法定生效条件说、效力待定说、有效说这五种学说中,除了有效说,其他学说都过多干涉了股权转让合同双方当事人的契约自由,且损害了受让人的利益。有效的股权转让合同仅产生卖方将股权让渡买方的合同义务,而非导致股权的自动、当然变动。有效说在保障了其他股东优先购买权的同时,也为受让人提供了更完善的救济,因此值得采纳。当然,在坚持有效说的同时,还要着眼于侵害优先购买权之后的救济,这样才能实现股权转让合同双方当事人以及其他股东三方的利益平衡。
It has always been controversial for the validity of the contract of transfer of equity that infringes on the preemptive rights of shareholders. In the case of invalidation, it can be withdrawn to say that the statutory effective conditions say that the effectiveness is to be determined. To effectively say that among the five doctrines, apart from effectively speaking, other doctrines have unduly interfered with the contractual freedom of the parties to the equity transfer contract and undermined the transferee People’s interests. A valid contract for the transfer of equity only gives rise to the seller’s obligation to surrender the buyer’s contractual obligations rather than the automatic and, of course, the change in shareholding. Effectively speaking, while assuring the preemptive rights of other shareholders, it also provides the assignee with better remedies and is therefore worth adopting. Of course, while insisting on effective theory, we should also focus on remedies after infringement of the preemptive right so as to strike a balance of interests between the parties involved in the equity transfer and other shareholders.