瑕疵股權(quán)法律問(wèn)題研究
發(fā)布時(shí)間：2018-10-30 14:23
【摘要】：近年來(lái),隨著市場(chǎng)經(jīng)濟(jì)的發(fā)展,股權(quán)糾紛的日益增多,學(xué)者對(duì)于瑕疵股權(quán)的討論也應(yīng)勢(shì)而生,瑕疵股權(quán)問(wèn)題成為了理論界和實(shí)務(wù)中頗受關(guān)注的問(wèn)題。股權(quán)存在瑕疵不僅會(huì)影響股東在公司各項(xiàng)權(quán)利的行使,而且將會(huì)對(duì)公司、其他足額出資的股東甚至公司債權(quán)人的利益產(chǎn)生不利的影響。此前,我國(guó)《公司法》及其一系列司法解釋對(duì)瑕疵股權(quán)尚無(wú)明確規(guī)定,于2010年12月16日開始實(shí)施的《最高人民法院〈關(guān)于適用中華人民共和國(guó)公司法〉若干問(wèn)題的規(guī)定(三)》(下稱“《公司法》司法解釋(三))中首次出現(xiàn)了“股權(quán)有權(quán)利瑕疵”的表述,并對(duì)出資導(dǎo)致的瑕疵股權(quán)作了較多規(guī)定,但是仍有待完善。 公司法理論研究上有關(guān)瑕疵股權(quán)這一概念的定義、外延、瑕疵股權(quán)所受的限制及其補(bǔ)救等各種相關(guān)問(wèn)題亦并未有完整的論述。在現(xiàn)有的理論研究中,為數(shù)不少的文章將“瑕疵股權(quán)”與“出資瑕疵的股權(quán)”相提并論,不分彼此,從而,在許多人的眼里,“瑕疵股權(quán)”等同于“出資有瑕疵的股權(quán)”,而對(duì)于出資的瑕疵是否一定導(dǎo)致“股權(quán)的瑕疵”,是否還有其他類型的瑕疵股權(quán)等問(wèn)題都不再深究。此前較受認(rèn)可的瑕疵股權(quán)定義為“因出資者在履行出資義務(wù)、股權(quán)記載、登記程序等環(huán)節(jié)存在違法、違規(guī)或者違約等瑕疵因素導(dǎo)致權(quán)利本身存在缺陷的股權(quán)”。但筆者認(rèn)為瑕疵股權(quán)之定義重點(diǎn)在于“權(quán)利本身存在缺陷的股權(quán)”,從而對(duì)于瑕疵股權(quán)的定義不應(yīng)將產(chǎn)生瑕疵的原因進(jìn)行列舉,因?yàn)榱信e一旦未盡即是不周延。 筆者認(rèn)為將瑕疵股權(quán)定義為“權(quán)利本身存在缺陷的股權(quán)”即可,對(duì)于瑕疵股權(quán)的研究也應(yīng)著眼于股權(quán)權(quán)能本身是否存在缺陷,權(quán)利行使是否受到限制,股權(quán)是否能發(fā)揮其原有功效而對(duì)其進(jìn)行研究,從而得出了出資瑕疵雖是導(dǎo)致瑕疵股權(quán)的最大原因,但是出資瑕疵與瑕疵股權(quán)之間也并非必然的邏輯關(guān)系,出資瑕疵并不必然導(dǎo)致股權(quán)瑕疵的結(jié)論。此外,工商登記錯(cuò)誤雖然是一種看似會(huì)導(dǎo)致股權(quán)瑕疵的行為,但是實(shí)際上工商登記并不會(huì)使股權(quán)本身存在缺陷,因此,工商登記錯(cuò)誤并非瑕疵股權(quán)產(chǎn)生的原因之一。 鑒于《公司法》司法解釋(三)、以及尚處于征求意見階段的《最高人民法院〈關(guān)于適用中華人民共和國(guó)公司法〉若干問(wèn)題的規(guī)定(四)》已對(duì)出資類瑕疵股權(quán)的權(quán)能限制以及股權(quán)轉(zhuǎn)讓等做了相應(yīng)規(guī)定,但是這些規(guī)定尚存在不完備之處,在實(shí)踐中的操作將會(huì)碰到許多問(wèn)題。本文將結(jié)合實(shí)際及相關(guān)法律及司法解釋的規(guī)定,立足于實(shí)務(wù)需要,對(duì)現(xiàn)實(shí)中存在的瑕疵股權(quán)的外延、權(quán)能、救濟(jì)與彌補(bǔ)等相關(guān)問(wèn)題進(jìn)行系統(tǒng)的分析,希望能為司法實(shí)務(wù)及司法解釋提供可資利用的參考。
[Abstract]:In recent years, with the development of the market economy and the increasing number of stock rights disputes, scholars should also discuss the defective equity, which has become a problem of great concern in theory and practice. The defects of stock rights will not only affect the exercise of shareholders' rights in the company, but also adversely affect the interests of the company, other fully funded shareholders and even the creditors of the company. Prior to this, China's Company Law and its series of judicial interpretations did not clearly provide for defective equity rights. The provisions of the Supreme people's Court on the Application of the Company Law of the people's Republic of China (3) > (hereinafter referred to as "Judicial interpretation of the Company Law (3)" came into force on December 16, 2010 for the first time. " The statement that the equity has a defect of rights, And contributed to the defective equity rights made more provisions, but still need to be improved. The definition, extension, limitation and remedy of defective equity are not fully discussed in the theoretical study of company law. In the existing theoretical studies, quite a number of articles equate "defective equity" with "defective equity in capital contribution", thus, in the eyes of many people, "defective equity" is equivalent to "defective equity". However, whether the defect of capital contribution must lead to the defect of equity, and whether there are other types of defective equity are no longer studied. Prior to the more recognized defective equity is defined as "the investor in the performance of investment obligations, equity records, registration procedures and other aspects of illegal, illegal or breach of contract and other defects resulting in the right itself defective equity." However, the author believes that the definition of defective equity is focused on "the right itself is defective equity", so the definition of defective equity should not enumerate the causes of defects, because the enumeration is incomplete once it is not exhaustive. The author thinks that the defective equity is defined as "the right itself is defective", and the research on the defective equity should also focus on whether the equity power itself is defective, whether the exercise of the right is restricted or not. Whether the stock right can exert its original effect and study it, so it is concluded that the defect of capital contribution is the biggest reason leading to the defective equity, but the logical relationship between the defect of capital contribution and the defective stock right is not inevitable. Investment defects do not necessarily lead to the conclusion that equity defects. In addition, although the error of business registration is a kind of behavior which seems to lead to the defect of stock right, in fact, it does not cause the defect of stock right itself. Therefore, the error of business registration is not one of the causes of defective stock right. In view of the judicial interpretation of the Company Law (III), And the provisions (4) of the Supreme people's Court on the Application of the Company Law of the people's Republic of China, which are still in the stage of soliciting opinions, have made corresponding provisions on the limitation of the power and transfer of shares of defective shares in the category of capital contribution. However, these regulations are still incomplete and will encounter many problems in practice. This article will combine the actual and the related law and the judicial explanation stipulation, bases on the practical need, carries on the systematic analysis to the real existence flaw stock right extension, the power, the relief and the remedy and so on related question. Hope to provide reference for judicial practice and judicial interpretation.
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D922.291.91
本文編號(hào)：2300252
[Abstract]:In recent years, with the development of the market economy and the increasing number of stock rights disputes, scholars should also discuss the defective equity, which has become a problem of great concern in theory and practice. The defects of stock rights will not only affect the exercise of shareholders' rights in the company, but also adversely affect the interests of the company, other fully funded shareholders and even the creditors of the company. Prior to this, China's Company Law and its series of judicial interpretations did not clearly provide for defective equity rights. The provisions of the Supreme people's Court on the Application of the Company Law of the people's Republic of China (3) > (hereinafter referred to as "Judicial interpretation of the Company Law (3)" came into force on December 16, 2010 for the first time. " The statement that the equity has a defect of rights, And contributed to the defective equity rights made more provisions, but still need to be improved. The definition, extension, limitation and remedy of defective equity are not fully discussed in the theoretical study of company law. In the existing theoretical studies, quite a number of articles equate "defective equity" with "defective equity in capital contribution", thus, in the eyes of many people, "defective equity" is equivalent to "defective equity". However, whether the defect of capital contribution must lead to the defect of equity, and whether there are other types of defective equity are no longer studied. Prior to the more recognized defective equity is defined as "the investor in the performance of investment obligations, equity records, registration procedures and other aspects of illegal, illegal or breach of contract and other defects resulting in the right itself defective equity." However, the author believes that the definition of defective equity is focused on "the right itself is defective equity", so the definition of defective equity should not enumerate the causes of defects, because the enumeration is incomplete once it is not exhaustive. The author thinks that the defective equity is defined as "the right itself is defective", and the research on the defective equity should also focus on whether the equity power itself is defective, whether the exercise of the right is restricted or not. Whether the stock right can exert its original effect and study it, so it is concluded that the defect of capital contribution is the biggest reason leading to the defective equity, but the logical relationship between the defect of capital contribution and the defective stock right is not inevitable. Investment defects do not necessarily lead to the conclusion that equity defects. In addition, although the error of business registration is a kind of behavior which seems to lead to the defect of stock right, in fact, it does not cause the defect of stock right itself. Therefore, the error of business registration is not one of the causes of defective stock right. In view of the judicial interpretation of the Company Law (III), And the provisions (4) of the Supreme people's Court on the Application of the Company Law of the people's Republic of China, which are still in the stage of soliciting opinions, have made corresponding provisions on the limitation of the power and transfer of shares of defective shares in the category of capital contribution. However, these regulations are still incomplete and will encounter many problems in practice. This article will combine the actual and the related law and the judicial explanation stipulation, bases on the practical need, carries on the systematic analysis to the real existence flaw stock right extension, the power, the relief and the remedy and so on related question. Hope to provide reference for judicial practice and judicial interpretation.
【學(xué)位授予單位】：中國(guó)政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2011
【分類號(hào)】：D922.291.91
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前2條
1 范詩(shī)恒;股東瑕疵出資的權(quán)利限制問(wèn)題研究[D];華東政法大學(xué);2012年
2 王冬梅;論發(fā)起人的資本充實(shí)責(zé)任[D];西南政法大學(xué);2012年
，本文編號(hào)：2300252
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