論股東瑕疵出資股權(quán)行使的限制
發(fā)布時(shí)間：2018-07-31 10:24
【摘要】：公司的資本制度和公司的法人人格制度是公司結(jié)構(gòu)體制中兩個(gè)最基本的制度,也是整個(gè)世界范圍內(nèi)公司法制定、修改、完善過程中最核心的兩個(gè)部分。公司的財(cái)產(chǎn)最初來源基于發(fā)起人股東的出資,股東的出資是公司能夠設(shè)立成功比不可少的前提條件,并且還極大的影響著公司財(cái)產(chǎn)的獨(dú)立性和完整性。公司的資本不足或者存在其他方面的瑕疵可能導(dǎo)致公司的法人人格被否認(rèn),公司法人人格被否認(rèn),也即揭開公司面紗,直接導(dǎo)致公司被否認(rèn)。由此可以看出,公司的資本制度,在公司結(jié)構(gòu)中占據(jù)著非常重要的地位。當(dāng)今我們正處于全面建設(shè)社會主義和諧社會時(shí)期,依法治國,全面建設(shè)社會主義法治國家是建設(shè)社會主義和諧社會的重要內(nèi)容,我國正逐步走向更加完善的社會主義法律體系。1993年通過的《公司法》在經(jīng)過1999年、2004年、2005年三次修正。2006年的新《公司法》修改了法定資本制,正式實(shí)行授權(quán)資本制,允許股東在繳納首次出資額后,分期繳納出資。這樣一方面提高投資積極性,繁榮市場經(jīng)濟(jì),促進(jìn)整個(gè)社會經(jīng)濟(jì)健康穩(wěn)定發(fā)展；但另一方面,在客觀上加大了瑕疵出資的風(fēng)險(xiǎn)。當(dāng)前,我國處于社會轉(zhuǎn)型時(shí)期,各方面的法律和體制都還有待完善和改革,投資者的誠信意識也還有待進(jìn)一步強(qiáng)化,無論在貨幣出資還是在非貨幣出資都存在許多瑕疵出資的情形。瑕疵出資不但影響著公司資本的充實(shí)和其他股東的利益,還影響著公司長遠(yuǎn)發(fā)展,給公司債權(quán)人利益的維護(hù)也帶來許多不利影響,加大了債權(quán)人維護(hù)權(quán)利的難度。進(jìn)一步嚴(yán)重影響著我國經(jīng)濟(jì)的發(fā)展,對公司經(jīng)濟(jì)占據(jù)巨大份額的市場經(jīng)濟(jì)的健康發(fā)展和社會信用體系的建立產(chǎn)生很大的阻礙。鑒于公司出資人瑕疵出資這一行為的種種負(fù)面影響。本文從國際投資公司訴安達(dá)巨鷹公司瑕疵出資這一案例出發(fā),對瑕疵出資的形式,瑕疵出資的股東資格以及權(quán)利限制,瑕疵出資行為的解決措施進(jìn)行探析,并對相關(guān)問題提出一些粗淺的自我認(rèn)識觀點(diǎn)。 全文分為三個(gè)大章節(jié)： 第一章,首先分析國際投資公司訴安達(dá)巨鷹公司瑕疵出資這一具體案例,對本案例的案由以及具體的訴訟情況以及黑龍江高級人民法院的一審判決和最高人民法院最終的二審判決進(jìn)行了大致的介紹,分析了案件的焦點(diǎn),指出案件在理論界以及司法實(shí)踐中的爭論分歧點(diǎn),并重點(diǎn)強(qiáng)調(diào)出與本課題相關(guān)的三個(gè)爭論焦點(diǎn)。 第二章,對案件所圍繞的瑕疵出資股東股權(quán)的限制方面,進(jìn)行了法理分析,簡單分析了目前普遍存在的幾種瑕疵出資形式；瑕疵出資的原因；瑕疵出資的股東資格是否受到影響,是否因?yàn)殍Υ贸鲑Y而限制其股東資格；瑕疵出資的股權(quán)究竟該怎么限制,才能既保護(hù)好公司資本充實(shí)、以及其他股東、公司債權(quán)人的利益,又在保護(hù)交易安全并維護(hù)交易秩序的前提下,不加重瑕疵出資人的負(fù)擔(dān),從而使他們不喪失投資公司的熱情。主要從自益權(quán)和共益權(quán)這兩個(gè)大類出發(fā)分別進(jìn)行了探討；瑕疵出資的股權(quán)是受到限制,并不是剝奪,因此在瑕疵出資的股權(quán)受到限制后,又提出怎樣恢復(fù)股權(quán)的行使。 第三章,對規(guī)范出資行為,解決完善瑕疵出資行為,以最大限度的減少市場上的瑕疵出資,分別從完善瑕疵出資股東責(zé)任,對其進(jìn)行利息加罰責(zé)任、建立瑕疵出資條件成熟的除名制度、建立瑕疵出資預(yù)警機(jī)制、強(qiáng)化公司內(nèi)部約束機(jī)制、加強(qiáng)驗(yàn)資機(jī)構(gòu)的驗(yàn)資責(zé)任這幾方面提出了措施,以期望瑕疵出資行為能逐步向好的方向前進(jìn),公司的資本制度能更加的完善,以促進(jìn)公司發(fā)展,市場經(jīng)濟(jì)發(fā)展。
[Abstract]:The capital system of the company and the corporate personality system of the company are the two most basic systems in the company's structural system. It is also the two most core part of the process of making, modifying and perfecting the company law throughout the world. The original source of the company's property is based on the capital contribution of the sponsors, and the capital contribution of the shareholders is the success ratio of the company. The lack of preconditions also greatly affects the independence and integrity of the company's property. The lack of capital or other defects in the company may cause the corporate personality to be denied, the corporate personality is denied, that is, the company's veil is uncovered and the company is denied. Thus, the company's capital system can be seen. Degree, in the structure of the company occupies a very important position. Today we are in a comprehensive construction of a socialist harmonious society, the rule of law, the overall construction of a socialist country under the rule of law is an important content of building a socialist harmonious society, China is gradually moving to the more good socialist legal system adopted in.1993 "company" In 1999, 2004, in 2004, the three amendment of the new "company law" in 2005 amended the legal capital system, and the authorized capital system was formally implemented to allow shareholders to pay their contributions in stages after the first contribution was paid. In this way, the enthusiasm of the investment, the prosperity of the market economy, the healthy and stable development of the whole society and the economy are promoted; but the other party is promoted, but the other party is to promote the healthy and stable development of the whole society and economy. At present, our country is in the period of social transformation, the law and system of all aspects are still to be perfected and reform, and the integrity consciousness of investors still needs to be further strengthened. The substantial capital of the company and the interests of other shareholders also affect the long-term development of the company, which also bring many adverse effects on the maintenance of the interests of the creditors, and increase the difficulty of maintaining the rights of the creditors. It further seriously affects the development of our economy and the healthy development and society of the market economy, which has a huge share of the company's economy. The establishment of the credit system has been greatly hindered. In view of the negative effects of the company contributor's defective capital contribution, this paper, starting with the case of the international investment company v. anda Giant Eagle Inc's defective capital contribution, gives the form of the defective capital contribution, the shareholder qualification of the defective capital contribution, the limitation of the rights and interests, and the solution of the defective investment behavior. It also analyzes some related problems and puts forward some shallow self understanding views.
The full text is divided into three major chapters:
In the first chapter, we first analyze the specific case of the international investment company v. anda Giant Eagle Inc's defective capital contribution, and introduce the case, the specific case and the final two trial decision of the Supreme People's court and the Supreme People's court, and analyze the focus of the case and point out that the case is in reason. On the dispute points in the circles and judicial practice, and emphasize the three controversial points related to this topic.
In the second chapter, the legal analysis is carried out on the limitation of the shareholders' stock rights of the defective capital shareholders around the case, and a simple analysis is made of the current common forms of defective capital contribution; the reasons for the defective capital contribution; whether the shareholders' qualification of the defective capital contribution is affected, or whether the qualification of the shareholders is restricted because of the defective capital; and the stock right of the defective capital contribution is limited. What is the limitation to protect the capital of the company and the interests of the other shareholders and the creditors of the company, and to protect the transaction security and maintain the order of the transaction, not to increase the burden of the blemish investors, so that they will not lose the enthusiasm of the investment companies. They are mainly from the two categories of the right of self benefit and the right of common benefit. The stock right of the defective capital is restricted and not deprived, so how to restore the exercise of the stock right after the limitation of the defective capital contribution.
The third chapter, to standardize the investment behavior, to solve the defective investment behavior, to minimize the investment in the market, to improve the liability of the shareholders by improving the liability of the shareholders, to establish the liability of interest plus penalty, to establish a mature disqualification system for the defective investment conditions, to establish the early warning mechanism for the defective capital contribution, to strengthen the internal restraint mechanism of the company, and to strengthen the internal restraint mechanism of the company, and strengthen the internal restraint mechanism of the company, and strengthen the mechanism of internal restraint of the company, and strengthen the mechanism of internal restraint of the company, and strengthen the mechanism of internal restraint and strengthen the company. Some measures have been put forward in the aspects of the capital verification responsibility of the capital verification institutions, with the expectation that the behavior of defective capital contribution can progressively move forward in a better direction, and the capital system of the company can be more perfect in order to promote the development of the company and the development of the market economy.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D922.291.91
本文編號：2155293
[Abstract]:The capital system of the company and the corporate personality system of the company are the two most basic systems in the company's structural system. It is also the two most core part of the process of making, modifying and perfecting the company law throughout the world. The original source of the company's property is based on the capital contribution of the sponsors, and the capital contribution of the shareholders is the success ratio of the company. The lack of preconditions also greatly affects the independence and integrity of the company's property. The lack of capital or other defects in the company may cause the corporate personality to be denied, the corporate personality is denied, that is, the company's veil is uncovered and the company is denied. Thus, the company's capital system can be seen. Degree, in the structure of the company occupies a very important position. Today we are in a comprehensive construction of a socialist harmonious society, the rule of law, the overall construction of a socialist country under the rule of law is an important content of building a socialist harmonious society, China is gradually moving to the more good socialist legal system adopted in.1993 "company" In 1999, 2004, in 2004, the three amendment of the new "company law" in 2005 amended the legal capital system, and the authorized capital system was formally implemented to allow shareholders to pay their contributions in stages after the first contribution was paid. In this way, the enthusiasm of the investment, the prosperity of the market economy, the healthy and stable development of the whole society and the economy are promoted; but the other party is promoted, but the other party is to promote the healthy and stable development of the whole society and economy. At present, our country is in the period of social transformation, the law and system of all aspects are still to be perfected and reform, and the integrity consciousness of investors still needs to be further strengthened. The substantial capital of the company and the interests of other shareholders also affect the long-term development of the company, which also bring many adverse effects on the maintenance of the interests of the creditors, and increase the difficulty of maintaining the rights of the creditors. It further seriously affects the development of our economy and the healthy development and society of the market economy, which has a huge share of the company's economy. The establishment of the credit system has been greatly hindered. In view of the negative effects of the company contributor's defective capital contribution, this paper, starting with the case of the international investment company v. anda Giant Eagle Inc's defective capital contribution, gives the form of the defective capital contribution, the shareholder qualification of the defective capital contribution, the limitation of the rights and interests, and the solution of the defective investment behavior. It also analyzes some related problems and puts forward some shallow self understanding views.
The full text is divided into three major chapters:
In the first chapter, we first analyze the specific case of the international investment company v. anda Giant Eagle Inc's defective capital contribution, and introduce the case, the specific case and the final two trial decision of the Supreme People's court and the Supreme People's court, and analyze the focus of the case and point out that the case is in reason. On the dispute points in the circles and judicial practice, and emphasize the three controversial points related to this topic.
In the second chapter, the legal analysis is carried out on the limitation of the shareholders' stock rights of the defective capital shareholders around the case, and a simple analysis is made of the current common forms of defective capital contribution; the reasons for the defective capital contribution; whether the shareholders' qualification of the defective capital contribution is affected, or whether the qualification of the shareholders is restricted because of the defective capital; and the stock right of the defective capital contribution is limited. What is the limitation to protect the capital of the company and the interests of the other shareholders and the creditors of the company, and to protect the transaction security and maintain the order of the transaction, not to increase the burden of the blemish investors, so that they will not lose the enthusiasm of the investment companies. They are mainly from the two categories of the right of self benefit and the right of common benefit. The stock right of the defective capital is restricted and not deprived, so how to restore the exercise of the stock right after the limitation of the defective capital contribution.
The third chapter, to standardize the investment behavior, to solve the defective investment behavior, to minimize the investment in the market, to improve the liability of the shareholders by improving the liability of the shareholders, to establish the liability of interest plus penalty, to establish a mature disqualification system for the defective investment conditions, to establish the early warning mechanism for the defective capital contribution, to strengthen the internal restraint mechanism of the company, and to strengthen the internal restraint mechanism of the company, and strengthen the internal restraint mechanism of the company, and strengthen the mechanism of internal restraint of the company, and strengthen the mechanism of internal restraint of the company, and strengthen the mechanism of internal restraint and strengthen the company. Some measures have been put forward in the aspects of the capital verification responsibility of the capital verification institutions, with the expectation that the behavior of defective capital contribution can progressively move forward in a better direction, and the capital system of the company can be more perfect in order to promote the development of the company and the development of the market economy.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D922.291.91
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