股東壓迫行為事由下的司法解散制度研究
發(fā)布時(shí)間：2018-09-04 16:42
【摘要】：司法解散是公司解散的重要類(lèi)型之一,其可以對(duì)公司進(jìn)行司法干預(yù),在公司股東的多種退出機(jī)制中,起著不可替代的作用,同時(shí)在保護(hù)股東、債權(quán)人、其他利害關(guān)系人、國(guó)家、集體的利益上也有著極其重要的意義。它的重點(diǎn)價(jià)值在于對(duì)股東利益以及其他利害關(guān)系人整體利益的保護(hù),其作為一種有效的股東退出公司途徑,在解決封閉公司問(wèn)題上具有舉足輕重的作用。因此,司法解散制度的存在無(wú)疑可以有效解決最常見(jiàn)的封閉公司情況之一---股東壓迫行為,使得包括受壓迫股東在內(nèi)的所有股東欲達(dá)到退出公司的目的而不能時(shí),可以有效擺脫封閉環(huán)境的束縛。故而,國(guó)外大多數(shù)國(guó)家均將公司僵局與股東壓迫行為作為司法解散的兩大法定解散事由,從而有效地保護(hù)股東以及利益相關(guān)者的利益。而我國(guó)新公司法第一百八十三條卻僅是針對(duì)公司僵局狀態(tài)下的司法解散制度,并未將股東壓迫行為納入司法解散適用對(duì)象,即我國(guó)并未建立股東壓迫行為事由下的司法解散制度,從而使得實(shí)踐中普遍存在的股東壓迫這一行為并沒(méi)有得到真正的立法解決,使得存在股東壓迫行為時(shí)股東仍然沒(méi)有有效的退出機(jī)制,不得不謂一大立法缺陷。 因此,筆者在對(duì)外國(guó)法進(jìn)行比較與借鑒、闡述我國(guó)股東壓迫行為進(jìn)行司法解散的理論依據(jù)的基礎(chǔ)上,同時(shí)鑒于司法解散制度的強(qiáng)烈性與徹底性,在設(shè)置一系列限制條件的前提下,試圖研究建立完善我國(guó)股東壓迫行為事由下的司法解散制度,滿足實(shí)踐需要、填補(bǔ)立法空白,構(gòu)建存在股東壓迫行為時(shí)的股東有效退出機(jī)制。 具體而言: 第一章,筆者首先介紹司法解散制度的相關(guān)理論與價(jià)值,概括描述國(guó)外司法解散的兩大法定解散事由:公司僵局與股東壓迫行為,并闡述了股東壓迫行為的立法與概念演進(jìn); 第二章,筆者拋去公司僵局這一較為傳統(tǒng)的解散事由不談,以股東壓迫行為為重點(diǎn),重點(diǎn)闡述國(guó)外股東壓迫行為的判定方法與典型適用情形,分析各國(guó)股東壓迫行為形成的共通性成因,明確股東壓迫行為帶來(lái)的危害; 第三章,筆者主要分析我國(guó)股東壓迫行為的實(shí)踐、理論與法律困境,以及此些困境形成的中國(guó)特色因素,從不同的主體角度闡述構(gòu)建我國(guó)股東壓迫行為事由下的司法解散制度的必要性。同時(shí)也在本章闡述了股東壓迫行為進(jìn)行司法解散的理論基礎(chǔ); 第四章,筆者試圖從三種宏觀原則、實(shí)體與程序微觀設(shè)計(jì)、兩種防御機(jī)制的設(shè)計(jì)三方面對(duì)我國(guó)股東壓迫行為事由下的司法解散制度進(jìn)行理性完善。首先,筆者設(shè)計(jì)了行使此制度時(shí)需要把握的三個(gè)原則,繼而筆者對(duì)此制度的保護(hù)利益與適用對(duì)象、判定方法與典型適用情形、當(dāng)事人、管轄、判決效力、調(diào)解前置程序等實(shí)體與程序兩大方面進(jìn)行微觀設(shè)想,最后以擔(dān)保制度與賠償責(zé)任對(duì)股東壓迫行為事由下的司法解散制度進(jìn)行防御性防范。
[Abstract]:Judicial dissolution is one of the important types of dissolution of the company. It can intervene the company judicially. It plays an irreplaceable role in the various withdrawal mechanisms of the shareholders of the company, while protecting shareholders, creditors, other interested parties and the state. The collective interest also has the extremely important significance. As an effective way for shareholders to withdraw from a company, it plays an important role in solving the problem of closed company. Therefore, there is no doubt that the existence of judicial dissolution system can effectively solve one of the most common closed company situations-shareholder oppression, so that all shareholders, including oppressed shareholders, can not achieve the purpose of withdrawing from the company. Can effectively get rid of the shackles of the closed environment. Therefore, most foreign countries regard corporate deadlock and shareholder oppression as two major legal dissolution reasons of judicial dissolution, so as to effectively protect the interests of shareholders and stakeholders. Article 183 of the new Company Law of our country is only aimed at the judicial dissolution system under the situation of the deadlock of the company, and does not bring the oppressive behavior of shareholders into the applicable object of judicial dissolution. That is, our country has not established the judicial dissolution system under the reason of shareholders' oppressive behavior, so that the widespread practice of shareholder oppression has not been truly resolved by legislation. It makes the shareholders still have no effective exit mechanism in the existence of shareholder oppression, which has to be said to be a major legislative defect. Therefore, on the basis of comparing and drawing lessons from foreign laws, the author expounds the theoretical basis of judicial dissolution of the oppressive behavior of shareholders in China, and at the same time, in view of the intensity and thoroughness of judicial dissolution system, On the premise of setting up a series of restrictive conditions, this paper attempts to establish and perfect the judicial dissolution system under the circumstances of the oppressive behavior of shareholders in our country, to meet the practical needs, to fill in the blank of legislation, and to construct the effective withdrawal mechanism of shareholders when the oppressive behavior of shareholders exists. In the first chapter, the author first introduces the theory and value of judicial dissolution system, and describes the two main legal dissolution reasons: corporate deadlock and shareholder oppression. In the second chapter, the author throws aside the corporate deadlock, which is a more traditional cause of dissolution, and focuses on the shareholders' oppressive behavior. Focus on the determination of foreign shareholders' oppressive behavior and typical applicable situation, analyze the common causes of the formation of shareholder oppression in various countries, make clear the harm caused by shareholder oppressive behavior; chapter three, The author mainly analyzes the practice, theory and legal dilemma of the oppressive behavior of shareholders in our country, and the factors of the formation of these difficulties with Chinese characteristics, and expounds the necessity of constructing the judicial dissolution system under the cause of the oppressive behavior of shareholders in China from different main points of view. At the same time, in this chapter, the author expounds the theoretical basis of judicial dissolution of the oppressive behavior of shareholders. Chapter four, the author tries to design from three kinds of macro principles, entity and procedure. The design of two kinds of defense mechanism three aspects to our country shareholder oppressive behavior subject matter judicial disbandment system carries on the rational consummation. First of all, the author has designed three principles which should be grasped when exercising this system, then the author to this system protection interest and the applicable object, the judgment method and the typical application situation, the party, the jurisdiction, the judgment validity, In the end, the guarantee system and the compensation liability are used to guard against the judicial dissolution system under the circumstances of the shareholders' oppressive behavior.
【學(xué)位授予單位】：華僑大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類(lèi)號(hào)】：D922.291.91
本文編號(hào)：2222755
[Abstract]:Judicial dissolution is one of the important types of dissolution of the company. It can intervene the company judicially. It plays an irreplaceable role in the various withdrawal mechanisms of the shareholders of the company, while protecting shareholders, creditors, other interested parties and the state. The collective interest also has the extremely important significance. As an effective way for shareholders to withdraw from a company, it plays an important role in solving the problem of closed company. Therefore, there is no doubt that the existence of judicial dissolution system can effectively solve one of the most common closed company situations-shareholder oppression, so that all shareholders, including oppressed shareholders, can not achieve the purpose of withdrawing from the company. Can effectively get rid of the shackles of the closed environment. Therefore, most foreign countries regard corporate deadlock and shareholder oppression as two major legal dissolution reasons of judicial dissolution, so as to effectively protect the interests of shareholders and stakeholders. Article 183 of the new Company Law of our country is only aimed at the judicial dissolution system under the situation of the deadlock of the company, and does not bring the oppressive behavior of shareholders into the applicable object of judicial dissolution. That is, our country has not established the judicial dissolution system under the reason of shareholders' oppressive behavior, so that the widespread practice of shareholder oppression has not been truly resolved by legislation. It makes the shareholders still have no effective exit mechanism in the existence of shareholder oppression, which has to be said to be a major legislative defect. Therefore, on the basis of comparing and drawing lessons from foreign laws, the author expounds the theoretical basis of judicial dissolution of the oppressive behavior of shareholders in China, and at the same time, in view of the intensity and thoroughness of judicial dissolution system, On the premise of setting up a series of restrictive conditions, this paper attempts to establish and perfect the judicial dissolution system under the circumstances of the oppressive behavior of shareholders in our country, to meet the practical needs, to fill in the blank of legislation, and to construct the effective withdrawal mechanism of shareholders when the oppressive behavior of shareholders exists. In the first chapter, the author first introduces the theory and value of judicial dissolution system, and describes the two main legal dissolution reasons: corporate deadlock and shareholder oppression. In the second chapter, the author throws aside the corporate deadlock, which is a more traditional cause of dissolution, and focuses on the shareholders' oppressive behavior. Focus on the determination of foreign shareholders' oppressive behavior and typical applicable situation, analyze the common causes of the formation of shareholder oppression in various countries, make clear the harm caused by shareholder oppressive behavior; chapter three, The author mainly analyzes the practice, theory and legal dilemma of the oppressive behavior of shareholders in our country, and the factors of the formation of these difficulties with Chinese characteristics, and expounds the necessity of constructing the judicial dissolution system under the cause of the oppressive behavior of shareholders in China from different main points of view. At the same time, in this chapter, the author expounds the theoretical basis of judicial dissolution of the oppressive behavior of shareholders. Chapter four, the author tries to design from three kinds of macro principles, entity and procedure. The design of two kinds of defense mechanism three aspects to our country shareholder oppressive behavior subject matter judicial disbandment system carries on the rational consummation. First of all, the author has designed three principles which should be grasped when exercising this system, then the author to this system protection interest and the applicable object, the judgment method and the typical application situation, the party, the jurisdiction, the judgment validity, In the end, the guarantee system and the compensation liability are used to guard against the judicial dissolution system under the circumstances of the shareholders' oppressive behavior.
【學(xué)位授予單位】：華僑大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類(lèi)號(hào)】：D922.291.91
【參考文獻(xiàn)】
相關(guān)期刊論文 前2條
1 朱慈蘊(yùn);資本多數(shù)決原則與控制股東的誠(chéng)信義務(wù)[J];法學(xué)研究;2004年04期
2 趙萬(wàn)一;吳長(zhǎng)波;;論公司的司法解散[J];河南省政法管理干部學(xué)院學(xué)報(bào);2005年06期
，本文編號(hào)：2222755
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