簡析公司股東非貨幣出資問題
發(fā)布時間：2018-09-08 19:13
【摘要】：股東出資是公司制度中的一個核心問題。股東出資構(gòu)成公司的資本。如果說資本是公司的血液,流動于公司整個運行過程之中,那么股東出資就是公司血液的源頭,它的健康與否,關(guān)乎公司的命運以及債權(quán)人利益的得失。 非貨幣財產(chǎn)出資是一種與金錢出資相對的出資形態(tài),其范圍要大于無形資產(chǎn)出資。雖然新的《中華人民共和國公司法》對非貨幣財產(chǎn)出資做了修訂,擴大了非貨幣出資財產(chǎn)的范圍,但其規(guī)定仍較籠統(tǒng),可操作性較弱。理論界對于有抵押權(quán)的實物、土地承包權(quán)、股權(quán)、債權(quán)能否作為股東出資也存有爭議,在如何保障非貨幣出資安全性的問題上也意見不一。本文在梳理諸多觀點的基礎(chǔ)上,對非貨幣財產(chǎn)出資問題進行論述,提出自己的看法,以期對非貨幣財產(chǎn)出資法律制度的完善貢獻一份綿薄之力。 全文一共分為四個部分: 第一部分論述股東出資的基本問題,如股東出資的概念、性質(zhì),股東出資的意義,非貨幣出資的概念界定,以及非貨幣出資的特殊意義——經(jīng)濟價值高、出資成本低、程序便利,有利于提高我國公司競爭力,促進經(jīng)濟長遠發(fā)展。 第二部分探討作為非貨幣出資的財產(chǎn)應(yīng)符合哪些標準。筆者借鑒了國外學(xué)者學(xué)說,認為的“五要件說”應(yīng)當成為判斷非貨幣出資財產(chǎn)的標準,即確定性、價值物的現(xiàn)存性、評價的可能性、可轉(zhuǎn)讓性以及實益性,這五個條件還應(yīng)當同時具備。筆者將這些要件與中國《公司法》規(guī)定的兩個核心要件加以對比分析,發(fā)現(xiàn)我國公司法的規(guī)定雖抓住了問題關(guān)鍵,較為精練概括,但在具體規(guī)定上仍有所欠缺,對現(xiàn)存性的主體要素、確定性的登記要求以及實益性要求均無明確規(guī)定,需要進一步完善。 第三部分探討非貨幣出資的主要類型。筆者結(jié)合非貨幣出資的財產(chǎn)的標準,分析了幾種典型的非貨幣出資形式,包括實物、土地使用權(quán)、知識產(chǎn)權(quán)、股權(quán)與債權(quán)出資。前三者是《公司法》明確列舉的出資形式,而后兩種則是實踐中爭議較多地具有一定代表性的其他非貨幣出資形式。筆者認為以上形式都符合非貨幣出資的標準,可用于出資。 第四部分討論了股東非貨幣財產(chǎn)出資的安全性制度設(shè)計。安全一直是公司法設(shè)計中追求的價值理念之一。如何保障非貨幣財產(chǎn)出資的安全是學(xué)界與實務(wù)界關(guān)注的焦點。筆者結(jié)合特殊的實物、土地使用權(quán)、知識產(chǎn)權(quán)、股權(quán)、債權(quán)出資形式各自的特點,進行了不同的安全性制度設(shè)計。 總之,非貨幣財產(chǎn)是股東出資財產(chǎn)的一種,它與貨幣出資相對應(yīng)。非貨幣出資有利于加快資產(chǎn)貨幣化進程、合理配置社會資源、減小公司設(shè)立成本、提高我國公司競爭力。
[Abstract]:Shareholder's contribution is a core problem in the company system. The capital contribution of the shareholders constitutes the capital of the company. If capital is the blood of the company and flows through the whole operation process of the company, then the shareholder contribution is the source of the blood of the company. Its health or not is related to the fate of the company and the gain or loss of the interests of the creditors. Non-monetary property contribution is a form of capital contribution opposite to that of money, and its scope is larger than that of intangible assets. Although the new Company Law of the people's Republic of China has revised the capital contribution of non-monetary property and expanded the scope of non-monetary capital contribution, its provisions are still relatively general and the operability is relatively weak. The theorists have different opinions on how to guarantee the security of non-monetary contribution, such as the real thing with mortgage, the right of land contract, the right of equity and the creditor's right as shareholder's contribution. On the basis of combing out many viewpoints, this paper discusses the issue of non-monetary property contribution and puts forward its own views in order to contribute a little to the perfection of the legal system of non-monetary property contribution. The paper is divided into four parts: the first part discusses the basic issues of shareholder's contribution, such as the concept, nature, significance of shareholder's contribution, the definition of non-monetary contribution, The special significance of non-monetary capital contribution is high economic value, low investment cost and convenient procedure, which is helpful to improve the competitiveness of Chinese companies and promote the long-term development of economy. The second part discusses what standards should be met as non-monetary contribution of property. The author draws lessons from the theories of foreign scholars and holds that the "five elements theory" should be the criterion for judging the property of non-monetary contribution, that is, certainty, the extant nature of the value, the possibility of evaluation, the transferability and the benefit. These five conditions should also be met at the same time. By comparing these elements with the two core elements stipulated in the Company Law of China, the author finds that although the provisions of the Company Law of our country have grasped the key problems, they are more concise and summarized, but they are still lacking in the specific provisions. There is no clear stipulation about the main elements of the extant, the deterministic registration requirement and the beneficial requirement, which need to be further improved. The third part discusses the main types of non-monetary contribution. The author analyzes several typical forms of non-monetary capital contribution, including material object, land use right, intellectual property right, equity and creditor's rights. The first three are clearly listed forms of capital contribution in Company Law, while the latter two are other forms of non-monetary capital which are controversial in practice. I believe that the above forms are in line with the standard of non-monetary contribution, can be used to contribute. The fourth part discusses the security system design of shareholder non-monetary property contribution. Safety has always been one of the values in the design of company law. How to ensure the safety of non-monetary property contribution is the focus of attention of academic and practical circles. The author designs different security systems according to the characteristics of special physical objects, land use rights, intellectual property rights, equity, and creditor's rights. In a word, non-monetary property is a kind of shareholder-funded property, which corresponds to monetary contribution. Non-monetary contribution is conducive to speeding up the process of monetization of assets, rationally allocating social resources, reducing the establishment cost of companies, and improving the competitiveness of Chinese companies.
【學(xué)位授予單位】：中國社會科學(xué)院研究生院
【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：2231436
[Abstract]:Shareholder's contribution is a core problem in the company system. The capital contribution of the shareholders constitutes the capital of the company. If capital is the blood of the company and flows through the whole operation process of the company, then the shareholder contribution is the source of the blood of the company. Its health or not is related to the fate of the company and the gain or loss of the interests of the creditors. Non-monetary property contribution is a form of capital contribution opposite to that of money, and its scope is larger than that of intangible assets. Although the new Company Law of the people's Republic of China has revised the capital contribution of non-monetary property and expanded the scope of non-monetary capital contribution, its provisions are still relatively general and the operability is relatively weak. The theorists have different opinions on how to guarantee the security of non-monetary contribution, such as the real thing with mortgage, the right of land contract, the right of equity and the creditor's right as shareholder's contribution. On the basis of combing out many viewpoints, this paper discusses the issue of non-monetary property contribution and puts forward its own views in order to contribute a little to the perfection of the legal system of non-monetary property contribution. The paper is divided into four parts: the first part discusses the basic issues of shareholder's contribution, such as the concept, nature, significance of shareholder's contribution, the definition of non-monetary contribution, The special significance of non-monetary capital contribution is high economic value, low investment cost and convenient procedure, which is helpful to improve the competitiveness of Chinese companies and promote the long-term development of economy. The second part discusses what standards should be met as non-monetary contribution of property. The author draws lessons from the theories of foreign scholars and holds that the "five elements theory" should be the criterion for judging the property of non-monetary contribution, that is, certainty, the extant nature of the value, the possibility of evaluation, the transferability and the benefit. These five conditions should also be met at the same time. By comparing these elements with the two core elements stipulated in the Company Law of China, the author finds that although the provisions of the Company Law of our country have grasped the key problems, they are more concise and summarized, but they are still lacking in the specific provisions. There is no clear stipulation about the main elements of the extant, the deterministic registration requirement and the beneficial requirement, which need to be further improved. The third part discusses the main types of non-monetary contribution. The author analyzes several typical forms of non-monetary capital contribution, including material object, land use right, intellectual property right, equity and creditor's rights. The first three are clearly listed forms of capital contribution in Company Law, while the latter two are other forms of non-monetary capital which are controversial in practice. I believe that the above forms are in line with the standard of non-monetary contribution, can be used to contribute. The fourth part discusses the security system design of shareholder non-monetary property contribution. Safety has always been one of the values in the design of company law. How to ensure the safety of non-monetary property contribution is the focus of attention of academic and practical circles. The author designs different security systems according to the characteristics of special physical objects, land use rights, intellectual property rights, equity, and creditor's rights. In a word, non-monetary property is a kind of shareholder-funded property, which corresponds to monetary contribution. Non-monetary contribution is conducive to speeding up the process of monetization of assets, rationally allocating social resources, reducing the establishment cost of companies, and improving the competitiveness of Chinese companies.
【學(xué)位授予單位】：中國社會科學(xué)院研究生院
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D922.291.91
【引證文獻】
相關(guān)碩士學(xué)位論文 前1條
1 龔程;股東出資填補責任研究[D];湖南大學(xué);2012年
，本文編號：2231436
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