有限公司股權繼承法律問題研究
發(fā)布時間：2018-07-24 18:30
【摘要】： 有限公司的股權繼承問題一直是各國公司法理論及實踐中一個備受爭議的問題,我國2005年新修訂后的《公司法》第七十六條首次規(guī)定,自然人股東死亡后,其合法繼承人可以繼承股東資格,但是公司章程另有規(guī)定的除外。這一條款基本終結了我國學理界與實務界關于股東資格能否繼承的大討論。雖然我國現(xiàn)行公司法對有限責任公司股權繼承作了規(guī)定,但是立法比較粗糙,細節(jié)問題和相關程序沒有進一步的立法考慮。為保護繼承人的權益,確保股權繼承順利完成,本文將采用實證研究、比較分析等研究方法,從抽象到具體、從理論到實踐,逐步分析有限公司股權繼承過程中存在的諸多問題,努力尋求解決有限公司股權繼承問題的方案。 全文除引言外,共分三個部分。 第一部分,有限公司股權繼承規(guī)定評析。本部分通過對我國股權繼承立法歷史進行考察,發(fā)現(xiàn)我國直到2005年才以立法的形式承認股東資格可以繼承,明確了我國股權繼承立法現(xiàn)狀。同時,借鑒國外股權繼承的立法規(guī)定,對比我國股權繼承規(guī)定,提出存在的問題,包括：第一,股東資格與股權的關系不明確。現(xiàn)行《公司法》第76條中用的是繼承股東資格的字眼,而不是繼承股權的字眼,因而沒有回答股權能否繼承、繼承股東資格和繼承股權的區(qū)別和聯(lián)系問題。第二,缺乏繼承人能否放棄繼承股東資格,而要求繼承股權對應的財產(chǎn)的規(guī)定。第三,沒有規(guī)定股東資格繼承與公司形態(tài)變化之間的關系。第四,沒有規(guī)定因繼承取得的股東資格的取得時間。第五,沒有解決特殊主體繼承股東資格以及特殊股權的繼承問題。特殊主體,主要是指胎兒、無民事行為能力人、限制民事行為能力人股東資格繼承問題。特殊股權主要是指出資不實股東、掛名股東、隱名股東、干股股東、被吊銷企業(yè)法人營業(yè)執(zhí)照的公司的股東的股權。 第二部分,有限公司股權繼承的基本理論。本部分從分析股權、股東資格的概念,確定股權、有限公司的性質(zhì)著手,在此基礎上研究股權作為繼承客體的適格性、人合性與股權繼承的關系。本文認為,股權具有財產(chǎn)屬性和可移轉(zhuǎn)性,從而使股權可以成為繼承的客體；而有限公司的人合性尚未強大到能夠阻止股權作為繼承權客體的程度,因此,股權具有作為繼承權客體的適格性。 第三部分,有限公司股權繼承中的實務問題。針對公司法76條的規(guī)定,本文歸納出三大類問題分別分析解決：第一,公司章程沒有約定股權繼承條款；第二,公司章程中明確約定股權繼承條款；第三,受遺贈人取得股東資格的問題。在分析三大類問題的前提下,又分析解決了四種特殊問題：第一,特殊主體繼承股權問題,包括胎兒、無民事行為能力人、限制民事行為能力人三類特殊主體；第二,特殊股權的繼承問題,包括出資不實股東的股權、隱名股東的股權、干股股東的股權、被吊銷營業(yè)執(zhí)照的公司股權；第三,因股權繼承產(chǎn)生的一人有限公司問題；第四,無人繼承的股權問題。最后對股權繼承的程序和繼承引發(fā)的僵局提出了解決辦法。
[Abstract]:The issue of equity succession in a limited company has always been a controversial issue in the theory and practice of corporate law in various countries. The seventy-sixth article of the company law, which was revised in 2005, provides for the first time that after the death of the shareholders of a natural person, its legal successor may inherit the shareholder's qualification, except as otherwise stipulated in the articles of association. This clause is basically the end of the article. Although the current company law of our country has made a provision on the inheritance of shares in the limited liability company, the legislation is relatively rough, the details and related procedures have no further legislative consideration. In order to protect the rights and interests of the successors and ensure the successful completion of the inheritance, this article is to ensure the successful completion of the stock right inheritance. We will use empirical research, comparative analysis and other research methods, from abstract to concrete, from theory to practice, to gradually analyze the problems existing in the process of stock right inheritance in limited companies, and try to seek solutions to the problem of equity succession in limited companies.
In addition to the introduction, the full text is divided into three parts.
The first part is a review of the provisions of the stock right inheritance of limited company. Through the investigation of the history of our country's equity succession legislation, it is found that our country did not admit that the shareholder's qualification can be inherited until 2005 in the form of legislation. The existing problems include: first, the relationship between shareholders' qualification and equity is not clear. The current "Company Law >" is used in the seventy-sixth article to inherit the shareholders' qualifications, not to inherit the equity, and therefore does not answer the question whether the equity is inherited, the shareholder's qualification and the successor share are distinguished and connected. Second, the lack of heirs Whether or not to give up the qualification of the successor shareholders, and the requirement to inherit the corresponding property of the equity. Third, there is no relation between the inheritance of the shareholder's qualification and the change of the company's form. Fourth, there is no time for the acquisition of the shareholders' qualification obtained by inheritance. Fifth, there is no settlement of the inheritance of the special subjects and the inheritance of special shares. Special subject, mainly refers to the fetus, without the capacity of civil conduct, to limit the issue of the qualification of the shareholders of civil capacity. The special equity mainly refers to the shares of the shareholders of the company, which are the shareholders, the names of the shareholders, the invisible shareholders, the shareholders, and the business license of the corporate legal person.
The second part, the basic theory of the stock right inheritance of limited company. This part is based on the analysis of the equity, the concept of shareholder qualification, the determination of the equity and the nature of the limited company. On this basis, the paper studies the relationship between the right of equity as the object of inheritance, the relationship between human ownership and the inheritance of equity. Right can be the object of inheritance, and the joint nature of the limited company has not been strong enough to be able to prevent the equity as the object of inheritance. Therefore, the equity has the adaptability as the object of inheritance.
The third part, the practical problems in the stock inheritance of limited company. In view of the 76 articles of the company law, this article sums up three major categories of problems to be analyzed and solved respectively: first, the company's constitution does not stipulate the succession clause of the stock rights; second, the company Zhang Chengzhong clearly stipulates the equity succession clause; third, the legates obtain the shareholders' qualification. On the premise of three major problems, four special problems are analyzed and solved: first, the inheritance of stock rights of the special subject, including the fetus, the person without civil capacity, and the three special subjects of the person with limited capacity for civil behavior; second, the inheritance of special shares, including the equity of the shareholders, the shares of the invisible shareholders, the shareholders of the invisible shareholders, and the shareholders of the shareholders Stock right, the share of the company that is revoked the business license; third, the one person limited company problem caused by the stock right inheritance; fourth, the problem of the uninherited stock right. Finally, it puts forward the solution to the procedure of inheritance and the impasse caused by inheritance.
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D922.291.91
本文編號：2142273
[Abstract]:The issue of equity succession in a limited company has always been a controversial issue in the theory and practice of corporate law in various countries. The seventy-sixth article of the company law, which was revised in 2005, provides for the first time that after the death of the shareholders of a natural person, its legal successor may inherit the shareholder's qualification, except as otherwise stipulated in the articles of association. This clause is basically the end of the article. Although the current company law of our country has made a provision on the inheritance of shares in the limited liability company, the legislation is relatively rough, the details and related procedures have no further legislative consideration. In order to protect the rights and interests of the successors and ensure the successful completion of the inheritance, this article is to ensure the successful completion of the stock right inheritance. We will use empirical research, comparative analysis and other research methods, from abstract to concrete, from theory to practice, to gradually analyze the problems existing in the process of stock right inheritance in limited companies, and try to seek solutions to the problem of equity succession in limited companies.
In addition to the introduction, the full text is divided into three parts.
The first part is a review of the provisions of the stock right inheritance of limited company. Through the investigation of the history of our country's equity succession legislation, it is found that our country did not admit that the shareholder's qualification can be inherited until 2005 in the form of legislation. The existing problems include: first, the relationship between shareholders' qualification and equity is not clear. The current "Company Law >" is used in the seventy-sixth article to inherit the shareholders' qualifications, not to inherit the equity, and therefore does not answer the question whether the equity is inherited, the shareholder's qualification and the successor share are distinguished and connected. Second, the lack of heirs Whether or not to give up the qualification of the successor shareholders, and the requirement to inherit the corresponding property of the equity. Third, there is no relation between the inheritance of the shareholder's qualification and the change of the company's form. Fourth, there is no time for the acquisition of the shareholders' qualification obtained by inheritance. Fifth, there is no settlement of the inheritance of the special subjects and the inheritance of special shares. Special subject, mainly refers to the fetus, without the capacity of civil conduct, to limit the issue of the qualification of the shareholders of civil capacity. The special equity mainly refers to the shares of the shareholders of the company, which are the shareholders, the names of the shareholders, the invisible shareholders, the shareholders, and the business license of the corporate legal person.
The second part, the basic theory of the stock right inheritance of limited company. This part is based on the analysis of the equity, the concept of shareholder qualification, the determination of the equity and the nature of the limited company. On this basis, the paper studies the relationship between the right of equity as the object of inheritance, the relationship between human ownership and the inheritance of equity. Right can be the object of inheritance, and the joint nature of the limited company has not been strong enough to be able to prevent the equity as the object of inheritance. Therefore, the equity has the adaptability as the object of inheritance.
The third part, the practical problems in the stock inheritance of limited company. In view of the 76 articles of the company law, this article sums up three major categories of problems to be analyzed and solved respectively: first, the company's constitution does not stipulate the succession clause of the stock rights; second, the company Zhang Chengzhong clearly stipulates the equity succession clause; third, the legates obtain the shareholders' qualification. On the premise of three major problems, four special problems are analyzed and solved: first, the inheritance of stock rights of the special subject, including the fetus, the person without civil capacity, and the three special subjects of the person with limited capacity for civil behavior; second, the inheritance of special shares, including the equity of the shareholders, the shares of the invisible shareholders, the shareholders of the invisible shareholders, and the shareholders of the shareholders Stock right, the share of the company that is revoked the business license; third, the one person limited company problem caused by the stock right inheritance; fourth, the problem of the uninherited stock right. Finally, it puts forward the solution to the procedure of inheritance and the impasse caused by inheritance.
【學位授予單位】：鄭州大學
【學位級別】：碩士
【學位授予年份】：2010
【分類號】：D922.291.91
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