摘要： 《公司法解释稿》采股权取得与股权行使互嵌同构的规范建构,致使股权转让规则在规范逻辑结构、制度价值理念与体系融合上存在缺陷。在权利转让至权利实现的规范流程中,股权取得要件的独立性,源自股权为受让人提供的保护与排他性保障,公司意志的介入仅具有阻却受让人股权实现的功能。股权作为抽象性权利,其取得要件为有效的股权让与合意,行使要件则为通知公司。公司置备股东名册的,其合理的拒绝记载构成受让人之股权嗣后消灭的抗辩事由。公司未置备股东名册的,受让人若未满足广义通知要件,公司可就股权行使主张抗辩权;已行使程式性股权的,则股权具备可实现性。界分股权取得与行使的要件并厘清公司抗辩事由与抗辩权的类型,可在体系上完善其他股东优先购买权、股权让与担保、股权善意取得等制度的规范适用。

关键词: 股权转让, 股权取得, 股权行使, 抗辩

Abstract: The “Draft Judicial Interpretation of the Company Law” adopts a normative framework where the acquisition and exercise of equity are mutually embedded and isomorphic, which leads to structural flaws in the normative logic, institutional values, and systemic integration of equity transfer rules.In the normative progression from the transfer of rights to their realization, the independence of the acquisition elements stems from the protection and exclusivity provided to the transferee, and the intervention of corporate will serves only to block the realization of such equity.As an abstract right, equity is acquired through a valid agreement on equity transfer, while its exercise is predicated upon notifying the company.Where the company maintains a shareholder register, a reasonable refusal to record the entry constitutes a ground for defense regarding the subsequent divestment of the transferee's equity.In the absence of such a register, the company may assert a right of defense against the exercise of equity if the transferee fails to satisfy the broad notification requirement; however, if procedural equity has already been exercised, the equity attains realizability.Delineating the constitutive elements of acquisition versus exercise, and clarifying the distinction between grounds for defense and rights of defense, will systematically refine the normative application of systems such as the right of first refusal, security by way of equity transfer, and the bona fide acquisition of equity.

Key words: Equity Transfer, Equity Acquisition, Equity Exercise, Defense