【编者按】公司法是企业的根本大法，“一千个读者眼中，就会有一千个哈姆雷特”，那是不是也有一千个公司法呢？笔者拟从涉税角度去解读公司法具体条文，试着把税法捣烂揉碎，看能否浆出一个什么样的作品来，这是个人学习公司法笔记之二十二，欢迎大家围观和关注交流。

　　Editor's note: Company law is the fundamental law of enterprises. "In the eyes of a thousand readers, there will be a thousand Hamlets," does that mean there are also a thousand company laws? The author intends to interpret the specific provisions of the Company Law from a tax related perspective, trying to break down the tax laws and see if he can come up with some kind of work. This is my personal study notes on the Company Law, and I welcome everyone to watch and follow the exchange.

　　《公司法》第七十九条【监事的权利】监事可以列席董事会会议，并对董事会决议事项提出质询或者建议。监事会发现公司经营情况异常，可以进行调查；必要时，可以聘请会计师事务所等协助其工作，费用由公司承担。

　　Article 79 of the Company Law: [Rights of Supervisors] Supervisors may attend board meetings as observers and raise questions or suggestions regarding board resolutions. The supervisory board may conduct an investigation if it discovers abnormal business operations of the company; If necessary, accounting firms can be hired to assist with their work, and the expenses will be borne by the company.

　　这两条规定赋予了监事会（监事）在公司治理中至关重要的?“在场权”和?“调查权”，是监督权的具象化。从涉税角度看，这是监事会（监事）履行其税务监督职责的两大手段，使其监督工作从静态审查走向动态介入，从事后检查走向事中干预，从形式监督走向实质调查。

　　These two regulations endow the supervisory board (supervisors) with the crucial "right to be present" and "right to investigate" in corporate governance, which is a concrete manifestation of the supervisory power. From a tax perspective, these are the two major means for the supervisory board (supervisors) to fulfill its tax supervision responsibilities, shifting its supervision work from static review to dynamic intervention, from post inspection to in-process intervention, and from formal supervision to substantive investigation.

　　同时，还赋予监督事会聘请外部机构来协助其工作，同时明确了经费的保障，确保了监事会（监事）不必受制于管理层的财务审批，可以直接启动调查，使监督真正具有威慑力。

　　At the same time, the supervisory board is also empowered to hire external agencies to assist in its work, and funding guarantees are clearly defined to ensure that the supervisory board (supervisors) is not subject to financial approval from management and can directly initiate investigations, making supervision truly deterrent. ?

　　《公司法》第八十条【董事、高管配合监事会行使权利】监事会可以要求董事、高级管理人员提交执行职务的报告。董事、高级管理人员应当如实向监事会提供有关情况和资料，不得妨碍监事会或者监事行使职权。

　　Article 80 of the Company Law: Directors and senior executives cooperate with the supervisory board to exercise their rights. The supervisory board may require directors and senior executives to submit reports on the performance of their duties. Directors and senior management personnel shall truthfully provide relevant information and materials to the board of supervisors, and shall not obstruct the board of supervisors or supervisors from exercising their powers.

　　本条为新增条文，赋予了监事会或监事有主动获取信息的权利，同时明确，董高有如实提供有关情况的义务，旨在进一步减少监事会行使职权的阻力，提高监督的质效。

　　This article is a newly added provision that grants the supervisory board or supervisors the right to actively obtain information, while clarifying the obligation of directors and senior executives to truthfully provide relevant information. The aim is to further reduce the resistance of the supervisory board to exercise its powers and improve the quality and effectiveness of supervision.

　　在日常事务中，税务事项具有高度的专业性和复杂性，且信息往往集中在执行层（管理层）和决策层（董事会），多为公司的“命脉”，如何获取第一手信息，对于监督而言至关重要。

　　In daily affairs, tax matters are highly specialized and complex, and information is often concentrated at the executive level (management) and decision-making level (board of directors), which are often the "lifeblood" of the company. How to obtain first-hand information is crucial for supervision. ?

　　《公司法》第八十一条【监事会的议事方式和表决程序】监事会每年度至少召开一次会议，监事可以提议召开临时监事会会议。

　　Article 81 of the Company Law: [Methods of Deliberation and Voting Procedures of the Supervisory Board] The supervisory board shall convene at least one meeting per year, and supervisors may propose to convene an extraordinary meeting of the supervisory board.

　　监事会的议事方式和表决程序，除本法有规定的外，由公司章程规定；监事会决议应当经全体监事的过半数通过；监事会决议的表决，应当一人一票；监事会应当对所议事项的决定作成会议记录，出席会议的监事应当在会议记录上签名。

　　The deliberation methods and voting procedures of the supervisory board shall be stipulated in the company's articles of association, except as otherwise provided in this law; The resolution of the board of supervisors shall be passed by a majority of all supervisors; The resolution of the supervisory board shall be voted on by one person, one vote; The supervisory board shall make meeting minutes for the decisions on the matters discussed, and the attending supervisors shall sign the meeting minutes.

　　此条文是确保监事会作为一个集体监督机构，能够有效运转的程序保障。监事会的监督，并不是指监事个人，而是通过正式会议和决议来行使，这套议事规则，正是将监督意志转化为行为的桥梁。

　　This provision is a procedural guarantee to ensure the effective operation of the supervisory board as a collective supervisory body. The supervision of the supervisory board does not refer to individual supervisors, but is exercised through formal meetings and resolutions. This set of rules of procedure is the bridge that transforms the will of supervision into behavior.

　　特别是本条最后一款，出席会议的监事须在会议记录上签名，这是应对税务稽查的重要的证据之一。签名的法律意义非常广泛，每一个人都须对签名的重要性予以重视，否则将带来诸多不确定性风险。

　　Especially the last paragraph of this article, the supervisors attending the meeting must sign the meeting minutes, which is one of the important evidences for dealing with tax inspections. The legal significance of signatures is very broad, and everyone must pay attention to the importance of signatures, otherwise it will bring many uncertain risks. ?

　　《公司法》第八十二条【监事会行使职权的费用承担】监事会行使职权所必需的费用，由公司承担。

　　Article 82 of the Company Law: The expenses incurred by the board of supervisors in exercising its powers shall be borne by the company.

　　这是监事会行使职权的财务保障，也是监事监督的独立性、有效性的重要保障。该部分支出，属于公司为完善治理结构、防范风险（包括税务风险）而发生的，属于管理费用可以在企业所得税前扣除。

　　This is the financial guarantee for the exercise of powers by the supervisory board, as well as an important guarantee for the independence and effectiveness of supervisory oversight. This part of the expenditure is incurred by the company to improve its governance structure and prevent risks (including tax risks), and can be deducted as management expenses before corporate income tax. ?

　　《公司法》第八十三条【不设监事会的监事及其职权】规模较小或者股东人数较少的有限责任公司，可以不设监事会，设一名监事，行使本法规定的监事会的职权；经全体股东一致同意，也可以不设监事。

　　Article 83 of the Company Law: "Supervisors who do not have a supervisory board and their powers" Limited liability companies with smaller scale or fewer shareholders may not have a supervisory board and may appoint one supervisor to exercise the powers of the supervisory board as stipulated in this Law; With the unanimous consent of all shareholders, there may be no need to appoint a supervisor.

　　规模较小或者股东人数少，是两个不同的概念，规模较小，一般是小规模、小型微利企业【小规模是增值税法上的概念，小型微利企业是企业所得税上的概念】，这类企业的主要任务是生存问题，先解决了生存问题，才会考虑企业是否合规。

　　Small scale or small number of shareholders are two different concepts. Small scale generally refers to small and micro profit enterprises [small scale is a concept in value-added tax law, and small and micro profit enterprises are a concept in corporate income tax]. The main task of such enterprises is survival, and only after solving the survival problem can the compliance of the enterprise be considered.

　　股东人数少，指的是独资企业或者股东为5人以下企业，从某种意义上而言，股东人数少通常不存在沟通问题，沟通能够解决公司遇到的大部分问题。同时，股东本身可以通过董事会、股东会过决议来发表意见，公司治理从来就不是一成不变的，每家公司面临的情况都不同，管理、监督模式也不同，形式不重要。

　　A small number of shareholders refers to a sole proprietorship or a company with less than 5 shareholders. In a sense, a small number of shareholders usually does not cause communication problems, and communication can solve most of the problems encountered by the company. At the same time, shareholders themselves can express their opinions through resolutions passed by the board of directors and shareholders' meeting. Corporate governance is never static, and each company faces different situations. The management and supervision models are also different, and the form is not important.

　　《公司法》第八十四条【股权转让】有限责任公司的股东之间可以相互转让其全部或者部分股权。

　　Article 84 of the Company Law [Equity Transfer] Shareholders of a limited liability company may transfer all or part of their equity to each other.

　　股东向股东以外的人转让股权的，应当将股权转让的数量、价格、支付方式和期限等事项局面通知其他股东，其他股东在同等条件下有优先购买权。股东自接到书面通知之日起三十日内未答复的，视为放弃优先购买权，协商确定各自的购买比例；协商不成的，按照转让时各自的出资比例行使优先购买权。

　　If a shareholder transfers equity to a person other than a shareholder, they shall notify other shareholders of the quantity, price, payment method, and deadline of the equity transfer. Other shareholders have the right of first refusal under the same conditions. If shareholders fail to respond within 30 days from the date of receiving the written notice, it shall be deemed that they have waived their right of first refusal and shall negotiate to determine their respective purchase ratios; If no agreement can be reached through negotiation, the right of first refusal shall be exercised in accordance with the respective contribution ratios at the time of transfer.

　　公司章程对股权转让另有规定的，从其规定。

　　If there are other provisions in the company's articles of association regarding the transfer of equity, those provisions shall prevail.

　　该条的变化还是蛮大的，一是取消了股东向股东以外的人转让股权，需经其他股东过半数同意的程序性规定；二是参考司法解释中关于通知内容的具体事项；三是参考司法解释中明确股东自收到书面通知之日起，30日内未答复的，视为放弃优先购买权，在实践中更具操作性。

　　The changes in this article are quite significant. Firstly, it eliminates the procedural requirement for shareholders to transfer their equity to individuals other than shareholders, which requires the consent of a majority of other shareholders; Secondly, refer to the specific matters regarding the content of the notice in the judicial interpretation; Thirdly, according to judicial interpretations, if a shareholder fails to respond within 30 days from the date of receiving a written notice, it shall be deemed as a waiver of the right of first refusal, which is more practical in practice.

　　这里需要注意的是，股东之间转让是无须通知其他股东的，其他股东也不享有优先购买权。事实上，这里也是有一个bug在里面的，如果采取分步实施的方式，先转让份额非常少的股权，第二次转让股份时，就无须通知其他股东，可能导致公司控制权发生转移。当然，公司章程对此有绝对的权威，这一点，需要充分预见各种情形，在公司章程中预有安排，才能始终掌控公司主动权。

　　It should be noted that there is no need to notify other shareholders of the transfer between shareholders, and other shareholders do not have the right of first refusal. In fact, there is also a bug here. If a step-by-step implementation is adopted, transferring a very small share of equity first, there is no need to notify other shareholders when transferring shares for the second time, which may lead to a transfer of control of the company. Of course, the company's articles of association have absolute authority over this matter, and it is necessary to fully anticipate various situations and make arrangements in the company's articles of association in order to always control the company's initiative.

　　在涉税处理上，主要涉及所得税、印花税。转让方需要就股权转让所得（转让收入 - 股权原值 - 合理费用）缴纳20%的所得税；印花税：按产权转移书据，由转让双方各自缴纳万分之五的印花税，注意印花税是双方都需要缴纳的。

　　In terms of tax treatment, it mainly involves income tax and stamp duty. The transferor is required to pay a 20% income tax on the equity transfer income (transfer income - original equity value - reasonable expenses); Stamp duty: According to the property transfer document, both parties shall pay a stamp duty of 0.05% each. Note that stamp duty is required to be paid by both parties.

　　实务中，股权低价转让被稽查的案例非常多，至于“公司章程对股权转让另有规定的，从其规定。”只是公司法的要求，税法对股权转让价值的认定，是独立于股东个人约定及民商法之上。譬如，股东各方在公司章程中规定，在满足一定条件下，以较低的价格获得股份，在公司法层面是有效约定，但是在税收征管体系中，则需要按照税法的规定来评判。

　　In practice, there are many cases of low-priced equity transfer being inspected. As for the requirement of "if the company's articles of association have other provisions on equity transfer, follow their provisions." This is only a requirement of the Company Law. The recognition of the value of equity transfer by tax law is independent of the individual agreement of shareholders and civil and commercial law. For example, in the company's articles of association, it is stipulated that shareholders can obtain shares at a lower price under certain conditions, which is a valid agreement at the level of company law. However, in the tax management system, it needs to be evaluated according to the provisions of tax law.

　　同时，通过公司股权的转让，来转移公司名下的土地、房产等的案例也很多，从商业模式上看，此种操作是没有问题的，但在涉税处理上，存在一定的风险，实践中有利用股权转让，实则转让土地被追征土增税的案例【这里实际上涉及一个土地增值税转移的问题，并不是通过股权转让方式，土地增值税就少征，而是该部分土增税从卖方转移买方而已。】

　　At the same time, there are many cases of transferring land, real estate, and other assets under the company's name through the transfer of company equity. From a business model perspective, this operation is not a problem, but there are certain risks in tax treatment. In practice, there are cases where equity transfer is used, but the transferred land is actually subject to land value-added tax. This actually involves a problem of land value-added tax transfer, which is not that the land value-added tax is reduced through equity transfer, but that part of the land value-added tax is transferred from the seller to the buyer

　　除了上述的风险点之外，股权转让中还有出资瑕疵、债务隐瞒、税款约定不明等风险，一定要用好自由约定条款，在公司章程中预有安排，未雨绸缪，方能从从容容、游刃有余。

　　In addition to the risk points mentioned above, there are also risks such as investment defects, debt concealment, and unclear tax agreements in equity transfer. It is necessary to make good use of free agreement clauses, make arrangements in the company's articles of association, and be prepared in advance in order to be able to handle them with ease and ease.

　　本文由 济南股权顶层架构   友情奉献.更多有关的知识请点击  http://www.guquanzhanlue.com/   真诚的态度.为您提供为全面的服务.更多有关的知识我们将会陆续向大家奉献.敬请期待.

　　This article is a friendly contribution from the top-level equity structure of Jinan For more related knowledge, please click http://www.guquanzhanlue.com/ Sincere attitude To provide you with comprehensive services We will gradually contribute more relevant knowledge to everyone Coming soon.