有限責任公司股權登記公信力研究
發(fā)布時間：2018-10-19 17:26
【摘要】：在我國司法實踐中,有限責任公司股權確認與轉(zhuǎn)讓糾紛十分常見。股權權屬認定問題究其本質(zhì)是股權的表征方式及表征方式的公信力問題。解決問題的關鍵是從立法上明確股權的表征方式,肯定有限責任公司股權登記的公信力,建立并完善與股權登記公信力相關的制度支持。 本文在證成權利需要通過唯一確定的表征方式加以彰顯的基礎之上,推導出股權應當具有明確的權利表征方式。股權的表征方式因公司性質(zhì)不同而有所不同。上市公司以證券登記結算機構的相應記載為股權的表征方式。對于非上市公司以及有限責任公司,無記名股東以股東持有的股票作為股權的表征方式；記名股東建議以股東名冊之記載作為股權的表征方式。雖然上市或非上市股份公司股權、有限責任公司股權,記名股股權、無記名股股權表征方式各不相同,但是同一種類型的公司中的同一種股權的表征方式的單一化是建立股權權利秩序的最基本要求。文章在區(qū)分股權變動公示和股權表征方式的前提下,理清了股權變動的公示原則與股權登記公信力的關系,即公示原則與公信原則是并列關系,有互補作用,公信原則并非由公示原則推導而來；股權變動公示原則賦予權利變動以效力,而公信原則賦予股權表征方式以效力。股權登記公信力的正當性基礎來自對合理信賴的保護。 第二部分通過對股權變動意思主義與形式主義兩種效力模式的比較分析,認為有限責任公司股權變動采用意思主義模式為宜,與之相應,股權變更登記具有對抗效力。原因在于,股權登記對抗效力模式與股權的權利性質(zhì)更相適應,更有利于合理配置利益與風險,且符合我國現(xiàn)行《公司法》的立法本意。在還原登記公信力與物權變動方式的關系的基礎之上,通過類比,證成股權變動的形式主義和意思主義均可與登記公信力相融通,形式主義與登記公信力沒有必然聯(lián)系,意思主義與公信力也并非天然地無法共生,對登記公信力的承認最終還是一個價值考量與政策選擇的問題。 第三部分深入有限責任公司股權登記公信力理論內(nèi)部,以有限責任公司股權善意取得制度為核心,探討登記公信力的信賴保護。在登記對抗主義背景下,分析股權善意取得的構成要件。股權善意取得的構成要件包括：出讓人是股東名冊上記載的權利人,受讓人經(jīng)交易行為受讓股權,受讓人善意且無重大過失。在理論分析的基礎上,文章對《最高人民法院關于適用(中華人民共和國公司法)若干問題的規(guī)定(三)》(法釋(2011)3號)中有關股權確認、股權善意取得的規(guī)定進行了檢視。 第四部分立足我國的現(xiàn)實提出構建有限責任公司股權登記公信力的制度支持,即建立股東名冊托管制度、完善股東名冊記載事項、建立登記錯誤賠償制度、明確股東名冊備置義務人及其法律責任等。
[Abstract]:In the judicial practice of our country, the dispute of ownership confirmation and transfer of limited liability company is very common. The essence of equity ownership is the credibility of equity representation and representation. The key to solve the problem is to clarify the representation of equity in legislation, affirm the credibility of equity registration of limited liability companies, and establish and improve the system support related to the credibility of equity registration. This paper deduces that equity should have a clear representation of rights on the basis that the right of proof needs to be manifested by a unique and definite way of representation. The characterization of equity varies according to the nature of the company. The listed company shall use the corresponding records of the securities registration and settlement institution as the representation of the shares. For non-listed companies and limited liability companies, registered shareholders are represented by the shares held by shareholders, and registered shareholders suggest that the record of the register of shareholders be used as the representation of equity. Although the shares of listed or non-listed joint-stock companies, the shares of limited liability companies, registered shares, registered shares and registered shares are characterized in different ways, However, the simplification of the same ownership in the same type of company is the most basic requirement to establish the order of equity rights. On the premise of distinguishing the publicity of stock right change from the mode of equity representation, the paper clarifies the relationship between the public principle of equity change and the credibility of equity registration, that is, the principle of public announcement and the principle of public trust are parallel relations, which have complementary effect. The principle of public trust is not derived from the principle of publicity; the principle of public notice of equity changes gives effect to the change of rights, while the principle of public trust gives effect to the way of equity representation. The legitimate basis of the credibility of equity registration comes from the protection of reasonable trust. In the second part, through the comparative analysis of the two effective modes of equity change intention doctrine and formalism, the author thinks that it is appropriate for limited liability company to adopt the intention doctrine mode, and accordingly, the registration of stock right change has antagonistic effect. The reason is that the model of countervailing effect of equity registration is more suitable to the nature of the right of equity, which is more conducive to the rational allocation of interests and risks, and conforms to the original legislative intent of the current Company Law of our country. On the basis of the relationship between the public trust of restoring registration and the mode of real right change, by analogy, the formalism and will doctrine of the change of stock right can be combined with the credibility of registration, and there is no inevitable relation between formalism and public credibility of registration. The recognition of the credibility of registration is ultimately a matter of value consideration and policy choice. The third part goes deep into the theory of limited liability company's stock right registration credibility and discusses the trust protection of registration credibility with the system of bona fide acquisition of stock right of limited liability company as the core. Under the background of registration antagonism, this paper analyzes the constitutive elements of bona fide acquisition of equity rights. The constitutive requirements of bona fide acquisition of equity include: the transferor is the obligee recorded in the register of shareholders, the transferee receives the share right through the transaction act, and the transferee is bona fide and has no gross negligence. On the basis of theoretical analysis, this paper examines the provisions of the Supreme people's Court concerning the application of the Company Law of the people's Republic of China (3) > (2011) 3) concerning the confirmation and bona fide acquisition of equity rights. The fourth part, based on the reality of our country, puts forward the system support to build the credibility of stock registration of limited liability company, that is, to establish the trust system of shareholders' roster, to improve the record of shareholders' register, and to establish the system of compensation for registration errors. Make clear the reserve obligor of stockholder's register and its legal liability, etc.
【學位授予單位】：吉林大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D922.291.91
本文編號：2281828
[Abstract]:In the judicial practice of our country, the dispute of ownership confirmation and transfer of limited liability company is very common. The essence of equity ownership is the credibility of equity representation and representation. The key to solve the problem is to clarify the representation of equity in legislation, affirm the credibility of equity registration of limited liability companies, and establish and improve the system support related to the credibility of equity registration. This paper deduces that equity should have a clear representation of rights on the basis that the right of proof needs to be manifested by a unique and definite way of representation. The characterization of equity varies according to the nature of the company. The listed company shall use the corresponding records of the securities registration and settlement institution as the representation of the shares. For non-listed companies and limited liability companies, registered shareholders are represented by the shares held by shareholders, and registered shareholders suggest that the record of the register of shareholders be used as the representation of equity. Although the shares of listed or non-listed joint-stock companies, the shares of limited liability companies, registered shares, registered shares and registered shares are characterized in different ways, However, the simplification of the same ownership in the same type of company is the most basic requirement to establish the order of equity rights. On the premise of distinguishing the publicity of stock right change from the mode of equity representation, the paper clarifies the relationship between the public principle of equity change and the credibility of equity registration, that is, the principle of public announcement and the principle of public trust are parallel relations, which have complementary effect. The principle of public trust is not derived from the principle of publicity; the principle of public notice of equity changes gives effect to the change of rights, while the principle of public trust gives effect to the way of equity representation. The legitimate basis of the credibility of equity registration comes from the protection of reasonable trust. In the second part, through the comparative analysis of the two effective modes of equity change intention doctrine and formalism, the author thinks that it is appropriate for limited liability company to adopt the intention doctrine mode, and accordingly, the registration of stock right change has antagonistic effect. The reason is that the model of countervailing effect of equity registration is more suitable to the nature of the right of equity, which is more conducive to the rational allocation of interests and risks, and conforms to the original legislative intent of the current Company Law of our country. On the basis of the relationship between the public trust of restoring registration and the mode of real right change, by analogy, the formalism and will doctrine of the change of stock right can be combined with the credibility of registration, and there is no inevitable relation between formalism and public credibility of registration. The recognition of the credibility of registration is ultimately a matter of value consideration and policy choice. The third part goes deep into the theory of limited liability company's stock right registration credibility and discusses the trust protection of registration credibility with the system of bona fide acquisition of stock right of limited liability company as the core. Under the background of registration antagonism, this paper analyzes the constitutive elements of bona fide acquisition of equity rights. The constitutive requirements of bona fide acquisition of equity include: the transferor is the obligee recorded in the register of shareholders, the transferee receives the share right through the transaction act, and the transferee is bona fide and has no gross negligence. On the basis of theoretical analysis, this paper examines the provisions of the Supreme people's Court concerning the application of the Company Law of the people's Republic of China (3) > (2011) 3) concerning the confirmation and bona fide acquisition of equity rights. The fourth part, based on the reality of our country, puts forward the system support to build the credibility of stock registration of limited liability company, that is, to establish the trust system of shareholders' roster, to improve the record of shareholders' register, and to establish the system of compensation for registration errors. Make clear the reserve obligor of stockholder's register and its legal liability, etc.
【學位授予單位】：吉林大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D922.291.91
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相關期刊論文 前2條
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2 傅曦林;;股東名冊受托管理人制度初探[J];學術論壇;2009年01期
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