公司瑕疵出資人股權(quán)轉(zhuǎn)讓問題研究
發(fā)布時(shí)間：2018-11-27 19:06
【摘要】： 在公司制度中,股東出資有著重要的意義,關(guān)系到股東、公司以及公司債權(quán)人的利益能否得到實(shí)現(xiàn)。對(duì)股東而言,股東出資一方面是股東對(duì)公司承擔(dān)有限責(zé)任的物質(zhì)基礎(chǔ)；另一方面也是股東對(duì)公司享有股權(quán)的依據(jù)。對(duì)公司而言,股東出資既是公司獲取獨(dú)立人格的必備要件,又是公司得以營(yíng)運(yùn)和發(fā)展的物質(zhì)基礎(chǔ)。對(duì)公司債權(quán)人而言,股東出資是公司債務(wù)的總擔(dān)保,是債權(quán)人實(shí)現(xiàn)其債權(quán)的物質(zhì)基礎(chǔ)和信用基礎(chǔ)。我國(guó)公司股東出資瑕疵問題異常嚴(yán)重,而由此引發(fā)的瑕疵股權(quán)轉(zhuǎn)讓問題對(duì)交易安全也構(gòu)成了極大的威脅,嚴(yán)重破壞了整個(gè)社會(huì)信用體系的建立。新修訂的《中華人民共和國(guó)公司法》的頒布實(shí)施,雖然使我國(guó)公司制度得到了進(jìn)一步的完善發(fā)展,針對(duì)原公司法在股東出資瑕疵的構(gòu)成以及民事法律后果等方面的規(guī)定過于原則、實(shí)踐中公司運(yùn)作不甚規(guī)范等狀況,對(duì)股東出資制度進(jìn)行了較大幅度的修改,但仍存在諸多問題尚未明確。 本文共分四章。 第一章瑕疵出資的界定。出資是股東的基本義務(wù)之一,瑕疵出資是指股東違反出資義務(wù),或履行出資義務(wù)不符合出資協(xié)議、公司章程或法律規(guī)定的情形。本章從股東出資制度談起,對(duì)瑕疵出資進(jìn)行了理論系統(tǒng)的分析,對(duì)瑕疵出資進(jìn)行了概括界定。 第二章瑕疵出資人的法律地位。本章主要圍繞出資瑕疵股東能否取得股東地位并行使股權(quán),分析了出資瑕疵股東的法律地位問題。根據(jù)新《公司法》立法精神可知,瑕疵出資人并不因瑕疵出資而喪失其股東地位,其仍為公司股東,享有股東權(quán)利。但同時(shí),結(jié)合其他一些國(guó)家和地區(qū)以及學(xué)者關(guān)于瑕疵出資的民事責(zé)任承擔(dān)的有關(guān)規(guī)定及觀點(diǎn),股東瑕疵出資后,其股權(quán)應(yīng)當(dāng)受到相應(yīng)限制,并且應(yīng)當(dāng)向公司其他股東及公司債權(quán)人承擔(dān)相應(yīng)的民事責(zé)任。 第三章瑕疵出資人股權(quán)轉(zhuǎn)讓效力分析。對(duì)于瑕疵出資股權(quán)轉(zhuǎn)讓合同是否有效理論界存在諸多爭(zhēng)議,本章通過討論分析認(rèn)為,由于瑕疵出資人具有股東地位,其也就有權(quán)轉(zhuǎn)讓該股權(quán),瑕疵股權(quán)轉(zhuǎn)讓合同應(yīng)該具有效力。而由于股東轉(zhuǎn)讓的股權(quán)具有瑕疵,在其轉(zhuǎn)讓后又將會(huì)帶來(lái)補(bǔ)繳義務(wù)等一系列問題的承擔(dān)。筆者通過對(duì)瑕疵出資各方面的分析,結(jié)合司法實(shí)踐及國(guó)外立法思想,層層深入,論述公司瑕疵出資人股權(quán)轉(zhuǎn)讓效力及其轉(zhuǎn)讓后補(bǔ)繳義務(wù)的承擔(dān)問題,以期對(duì)解決實(shí)踐中存在的瑕疵股權(quán)轉(zhuǎn)讓問題有所裨益。 第四章結(jié)語(yǔ)在歸納全文基礎(chǔ)上進(jìn)行總結(jié)。筆者認(rèn)為,瑕疵出資人并不因其出資瑕疵而喪失股東地位,其仍享有股東權(quán)利,有權(quán)轉(zhuǎn)讓其股權(quán)。但由于股權(quán)具有瑕疵,瑕疵出資人的股東權(quán)利受到一定限制并承擔(dān)相應(yīng)的民事責(zé)任。并且在股權(quán)轉(zhuǎn)讓后,瑕疵出資人仍應(yīng)承擔(dān)補(bǔ)繳出資的義務(wù)。
[Abstract]:In the corporate system, shareholder contribution is of great significance, which concerns whether the interests of shareholders, companies and corporate creditors can be realized. For shareholders, shareholder contribution is the material basis for shareholders to bear limited liability to the company; on the other hand, it is the basis for shareholders to enjoy equity in the company. For a company, shareholder contribution is not only the essential requirement for the company to acquire independent personality, but also the material basis for the company to operate and develop. To the creditors of a company, the shareholder's contribution is the total guarantee of the company's debt, and the material basis and the credit basis for the creditors to realize their creditor's rights. The defect of shareholders' contribution is very serious in our country, but the problem of the transfer of defective shares also poses a great threat to the security of the transaction, which seriously damages the establishment of the whole social credit system. The promulgation and implementation of the newly revised Company Law of the people's Republic of China has further improved and developed our company system. In view of the excessive principle of the original company law on the constitution of shareholders' contribution defects and the civil legal consequences, and the fact that the operation of the company is not very standard in practice, the system of shareholder's contribution has been greatly modified. However, there are still many problems not yet clear. This paper is divided into four chapters. The first chapter is the definition of defective capital contribution. Capital contribution is one of the basic obligations of shareholders, and defective capital contribution refers to the situation that shareholders violate the obligation of capital contribution, or perform the obligation of contribution not in accordance with the investment agreement, the articles of association or the law. This chapter starts with the shareholder contribution system, analyzes the defective investment systematically, and defines the defective investment. Chapter II legal status of defective investors. In this chapter, the legal status of defective shareholders is analyzed around whether they can obtain shareholder status and exercise their equity. According to the legislative spirit of the new Company Law, the defective investor does not lose his shareholder status because of the defective capital contribution, and he is still the shareholder of the company and enjoys the shareholder rights. But at the same time, combined with some other countries and regions and scholars on the civil liability for defective investment, shareholders' equity should be restricted. And shall bear the corresponding civil liability to other shareholders and creditors of the company. Chapter three analyzes the effect of equity transfer of defective investors. There are a lot of disputes about the validity of the transfer contract of defective capital stock right. Through discussion and analysis, this chapter holds that because the defective investor has the status of shareholder, he has the right to transfer the stock right, and the defective equity transfer contract should have effect. However, due to the defect of shareholders' equity transfer, it will bring about a series of problems such as the obligation to pay after its transfer. Through the analysis of all aspects of defective capital contribution, combined with judicial practice and foreign legislative thought, the author discusses the effect of equity transfer of defective investors and the commitment of repaying obligation after transfer. In order to solve the problem of flawed equity transfer in practice. The fourth chapter summarizes the conclusion on the basis of the full text. The author believes that the defective investor does not lose his shareholder status because of the defect of his capital contribution, and he still enjoys the right of shareholders and the right to transfer his equity. However, due to the defect of equity, the shareholder rights of defective investors are limited and bear the corresponding civil liability. And after the equity transfer, the defective investor should still bear the obligation to make up the capital contribution.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D922.291.91
本文編號(hào)：2361755
[Abstract]:In the corporate system, shareholder contribution is of great significance, which concerns whether the interests of shareholders, companies and corporate creditors can be realized. For shareholders, shareholder contribution is the material basis for shareholders to bear limited liability to the company; on the other hand, it is the basis for shareholders to enjoy equity in the company. For a company, shareholder contribution is not only the essential requirement for the company to acquire independent personality, but also the material basis for the company to operate and develop. To the creditors of a company, the shareholder's contribution is the total guarantee of the company's debt, and the material basis and the credit basis for the creditors to realize their creditor's rights. The defect of shareholders' contribution is very serious in our country, but the problem of the transfer of defective shares also poses a great threat to the security of the transaction, which seriously damages the establishment of the whole social credit system. The promulgation and implementation of the newly revised Company Law of the people's Republic of China has further improved and developed our company system. In view of the excessive principle of the original company law on the constitution of shareholders' contribution defects and the civil legal consequences, and the fact that the operation of the company is not very standard in practice, the system of shareholder's contribution has been greatly modified. However, there are still many problems not yet clear. This paper is divided into four chapters. The first chapter is the definition of defective capital contribution. Capital contribution is one of the basic obligations of shareholders, and defective capital contribution refers to the situation that shareholders violate the obligation of capital contribution, or perform the obligation of contribution not in accordance with the investment agreement, the articles of association or the law. This chapter starts with the shareholder contribution system, analyzes the defective investment systematically, and defines the defective investment. Chapter II legal status of defective investors. In this chapter, the legal status of defective shareholders is analyzed around whether they can obtain shareholder status and exercise their equity. According to the legislative spirit of the new Company Law, the defective investor does not lose his shareholder status because of the defective capital contribution, and he is still the shareholder of the company and enjoys the shareholder rights. But at the same time, combined with some other countries and regions and scholars on the civil liability for defective investment, shareholders' equity should be restricted. And shall bear the corresponding civil liability to other shareholders and creditors of the company. Chapter three analyzes the effect of equity transfer of defective investors. There are a lot of disputes about the validity of the transfer contract of defective capital stock right. Through discussion and analysis, this chapter holds that because the defective investor has the status of shareholder, he has the right to transfer the stock right, and the defective equity transfer contract should have effect. However, due to the defect of shareholders' equity transfer, it will bring about a series of problems such as the obligation to pay after its transfer. Through the analysis of all aspects of defective capital contribution, combined with judicial practice and foreign legislative thought, the author discusses the effect of equity transfer of defective investors and the commitment of repaying obligation after transfer. In order to solve the problem of flawed equity transfer in practice. The fourth chapter summarizes the conclusion on the basis of the full text. The author believes that the defective investor does not lose his shareholder status because of the defect of his capital contribution, and he still enjoys the right of shareholders and the right to transfer his equity. However, due to the defect of equity, the shareholder rights of defective investors are limited and bear the corresponding civil liability. And after the equity transfer, the defective investor should still bear the obligation to make up the capital contribution.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類號(hào)】：D922.291.91
【引證文獻(xiàn)】
中國(guó)碩士學(xué)位論文全文數(shù)據(jù)庫(kù) 前4條
1 王斌;瑕疵出資股權(quán)轉(zhuǎn)讓法律問題研究[D];大連海事大學(xué);2011年
2 徐翠竹;有限責(zé)任公司瑕疵出資民事責(zé)任[D];南京大學(xué);2011年
3 谷夢(mèng)婕;瑕疵股權(quán)轉(zhuǎn)讓合同效力的認(rèn)定及民事責(zé)任承擔(dān)[D];上海交通大學(xué);2011年
4 周寒梅;出資瑕疵之股權(quán)轉(zhuǎn)讓問題研究[D];湖南大學(xué);2011年
，本文編號(hào)：2361755
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