合规解读 - 一方擅自转让股权，需要配偶同意吗？答案你想不到
在股权转让纠纷中，有时会遇到夫妻一方擅自转让其名下的股权，另一方向法院提出转让无效的请求。
In the dispute of equity transfer, sometimes one of the husband and wife transfers the shares in his/her name without authorization, and the other makes a request to the court that the transfer is invalid.
对于该请求，各地法院的判决角度不一，认为夫妻关系存续期间取得的股权或者以夫妻共同财产出资形成的股权属于夫妻共同财产，应按照《民法典》中关于夫妻共同财产的规定处理。
As for the request, the judgment of courts in different places is different. They think that the equity obtained during the existence of the relationship between husband and wife or the equity formed by the joint property of husband and wife belongs to the joint property of husband and wife, which should be dealt with in accordance with the provisions of the Civil Code of the People's Republic of China on the joint property of husband and wife.
还有的认为该类纠纷属于家庭财产纠纷，首先应当适用《民法典》的规定，作为调整商事行为的《公司法》处于适用的次要地位。
Others think that this kind of disputes belong to family property disputes, and the provisions of the Civil Code of the People's Republic of China should be applied first. The Company Law of the People's Republic of China, which regulates commercial behavior, is in the secondary position
在我们处理的几起该类案件中，股权转让方的配偶提起诉讼，要求确认股权转让协议无效、并返还股权
In several such cases, the spouse who has transferred the equity filed a lawsuit to confirm the invalidity of the equity transfer agreement and return the equity
该诉请在双方当事人之间形成的是因股权转让合同形成的法律关系，核心为股权转让纠纷，根据案件情况如涉及到夫妻共同财产的，则同时考虑《民法典》的规定。
The claim between the two parties is the legal relationship of equity transfer contract, which is defined as a dispute of equity transfer. According to the situation of the case, if the joint property of husband and wife is involved, the provisions of the Civil Code of the People's Republic of China shall be considered at the same time.
否则，对该类案件的处理应当适用我国《公司法》的相关调整股权转让交易的法律规范，而不应首先适用调整婚姻及其财产关系的法律规定。
Otherwise, The Company Law of the People's Republic of China should be applied to deal with such cases, rather than the marriage and property relationship.
那夫妻一方擅自转让登记在其名下的股权，是否需要经过配偶同意呢？
When a party transfers its equity , does it need the consent of his/her spouse?
从我们的实践操作来看，这个问题需要分两种情况来分析：
From our experience, this problem needs to be analyzed in two situations:
一、夫妻双方共同出资设立的公司（即夫妻公司）
1、 Company jointly funded by husband and wife
夫妻双方共同出资设立公司的，应当以各自所有的财产作为注册资本，并各自承担相应的责任。
Where the husband and wife jointly contribute to the establishment of a company, their respective property shall be taken as the registered capital, and they shall bear their respective responsibilities.
因此，夫妻双方登记注册公司时应当提交财产分割证明。
Therefore, the husband and wife shall submit the certificate of property division when registering the registered company.
未进行财产分割的，应当认定为夫妻双方以共同共有财产出资设立公司。
If there is no division of property, it shall be deemed that both husband and wife contribute to the establishment of the company with their common property.
在夫妻关系存续期间，夫或妻名下的公司股份属于夫妻双方共同共有的财产，作为共同共有人，夫妻双方对该项财产享有平等的占有、使用、收益和处分的权利。
During the duration of the relationship between husband and wife, the company shares in the name of husband or wife belong to the common property of both husband and wife. As joint owners, both husband and wife have equal rights to possess, use, benefit and dispose of the property.
同时，《民法典》第一千零六十条第二款，夫妻之间对一方可以实施的民事法律行为范围的限制，不得对抗善意相对人。
Meanwhile, article 1600, paragraph 2, of the Civil Code of the People's Republic of China, the limits of civil legal acts between husband and wife that one party can carry out shall not be against the opposite person in good faith.
因此，夫或妻一方转让共同共有的公司股权的行为，属于对夫妻共同财产作出重要处理，应当由夫妻双方协商一并共同在股权转让协议、股东会决议和公司章程修正案上签名。
Therefore, the act of husband or wife transferring the equity of the joint company is an important disposal of the joint property of husband and wife. Both husband and wife should negotiate and sign the equity transfer agreement, the resolution of the shareholders' meeting and the amendment to the articles of association together.
综上，夫妻双方共同共有公司股权的，夫或妻一方与他人订立股权转让协议的效力问题，应当根据案件事实，结合另一方对股权转让是否明知、受让人是否为善意等因素进行综合分析。
To sum up,if both husband and wife share the company shares, the validity of the husband or wife to conclude an equity transfer agreement with others shall be comprehensively analyzed based on the facts of the case and the other party's knowledge of the transfer of shares and whether the assignee is in good faith.
如果能够认定另一方明知股权转让，且受让人是基于善意，则股权转让协议对于另一方具有约来力，无须经过配偶一方的同意和确认。
If it can be found that the other party knows the equity transfer well and the transferee is in good faith, the equity transfer agreement has contractual force for the other party, without the consent and confirmation of the spouse.
二、夫妻一方与他人共同设立公司，股权登记在该夫或妻一人名下
2、 One of the husband and wife establishes a company with others, and the equity is registered in the name of the husband or wife
此种情形下，对于转让方配偶提出的股权转让未经其同意，股权转让协议无效的诉请理由，法院一般认为，股权作为一项特殊的财产权，除其具有的财产权益内容外，还具有与股东个人的社会属性及其特质、品格密不可分的人格权、身份权等内容。
In this case, the court generally holds that the equity, as a special property right, has not only the content of property rights, but also the content of personality rights and identity rights, which are closely related to the social attribute and character of shareholders.
如无特别约定，对于自然人股东而言，股权仍属于商法规范内的私权范畴，其各项具体权能应由股东本人独立行使，不受他人干涉。
Without special agreement, for natural person shareholders, the equity is still the private right within the norms of commercial law. All specific rights and powers of the shareholders shall be exercised independently by the shareholders themselves and shall not be interfered by others.
在股权流转方面，我国《公司法》确认的合法转让主体也是股东本人，而不是其所在的家庭。
In terms of equity transfer, the legal transfer subject confirmed by The Company Law of the People's Republic of China is also the shareholder himself, not his family.
因此，只要转让方在签署股权转让协议时是适格的民事主体，意思表示真实、明确，协议内容不违反我国《民法典》《公司法》的强制性规定，该股权转让协议应认定有效。无须经过配偶一方的同意和确认。
Therefore, as long as the transferor is a qualified civil subject when signing the equity transfer agreement, the meaning is true and clear, and the content of the agreement does not violate the mandatory provisions of the civil code and the company law of our country, the equity transfer agreement should be recognized as valid. Without the consent and confirmation of one spouse.
特别声明Notes：
以上文章仅代表作者本人观点，不代表上海锦坤律师事务所或其律师出具的任何形式之法律意见或建议。如需转载或引用该等文章的任何内容，请私信沟通授权事宜。如您有意就相关话题进一步交流或探讨，欢迎与本所或律师本人联系。
This article only represents the author's own views, and does not represent any form of legal opinions or suggestions issued by Shanghai Jinkun Law Firm .If you need to reprint or quote any content of these articles, please contact us. If you are interested in further exchange or discussion on related topics, please contact the lawyer or us.
作者:徐宝同 Author：XuBaotong
日照仲裁委员会 仲裁员
Arbitrator of RIZHAO Arbitration
上海锦坤律师事务所 合伙人
Partner of Shanghai JinKun Law firm
业务方向: 民商事类、诉讼仲裁争议解决
Commercial Arbitration and Litigation
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