القيود النظامية الواردة على مبدأ حرية تداول الأسهم في التشريع الجزائري

الملخص EN

The right of the shareholder to trade his shares is considered a public order right and may not be deprived of it, and if rules are established to regulate this right, it should not reach the limit of his loss of substance, so the freedom to trade shares in the joint stock company has become an beginning that embodies the true freedom of the shareholder, enabling him to join the company and withdraw from it once it has decided to do so, but the principle of embodying the absolute freedom of trading may lead to the waste of purely practical considerations required by the interest of the company or shareholders in general.

This prompted the legislator to adhere to this principle with a set of restrictions, both those imposed by the Commercial Law and those in which he left the freedom to regulate or agree with shareholders in accordance with the Basic Law to preserve the interests of both the company and shareholders, which are known as the convention restrictions on the principle of free circulation of shares, namely the requirement of consent and the condition of intercession.

The legislator authorized the offer of transfer of shares to others to the company for approval under a condition of the Basic Law except in certain special cases such as inheritance or referral to spouse, assets or branches, as well as actions taken when seeking approval or if the company rejects such a referral.

Contrary to the consent requirement, the legislator did not provide for the requirement of intercession and thus left ample room for jurisprudence and jurisprudence to determine the provisions of this condition as a restriction on the shareholder's freedom to trade his shares, which is the right of shareholders to recover the share from the buyer and replace it, and the condition of intercession is valid whether it is required in the company's basic law or in the form of nonfoundational agreements, but it cannot be an argument to others unless it is founding.