公司登記不實的法律問題研究
發(fā)布時間：2018-12-20 08:15
【摘要】：當(dāng)公司登記的價值天平在安全與效率中搖擺不定時,我國的立法者把價值砝碼加向了安全一方,核心表現(xiàn)為保障交易的安全與秩序。由于公權(quán)力的介入,公司登記過程中多顯露出公法上的效果,相比之下,登記完成后私法效果才占據(jù)了主導(dǎo)地位,公司登記不實的法律表現(xiàn)和后果就發(fā)生在這一階段。當(dāng)權(quán)利人因為公司登記不實而遭受損害卻得不到救濟(jì)尤其是私法上的救濟(jì)時,不得不讓人懷疑安全價值在其中發(fā)生了扭曲。在國外,比如德國、法國、美國等,對公司登記不實的法律規(guī)制都有比較深度和系統(tǒng)的規(guī)定。目前,我國對公司登記制度的研究仍處于“邊緣化”的狀態(tài),國內(nèi)的研究大多停留在登記的效力、性質(zhì)、范圍等理論層面,對登記不實法律責(zé)任的完善特別是民事責(zé)任構(gòu)建少之又少；就我國立法層面而言,登記法律規(guī)定較為分散,并且遺漏了部分公司登記不實法律責(zé)任的主體僅僅追究行為人的行政責(zé)任和刑法上的責(zé)任,民事責(zé)任十分缺乏和單一,而現(xiàn)實中遭受損失的第三人往往更愿意追究行為人的民事賠償責(zé)任,以彌補(bǔ)自己的損失�？梢�,登記不實的理論、立法與現(xiàn)實不匹配的矛盾表現(xiàn)得尤為突出。在市場經(jīng)濟(jì)不斷發(fā)展的今天,每個人都有可能遇到投資的問題,面對一個被陌生人統(tǒng)治的世界。盡管我們可以自由選擇交易的對象、方式和內(nèi)容,但最終還是不得已將自身的交易安全托付給了素未謀面的陌生人,陌生人的專業(yè)素養(yǎng)和職業(yè)道德決定了交易風(fēng)險的系數(shù)。在個人誠信缺失的社會環(huán)境下,筆者試圖借鑒國外立法的經(jīng)驗,立足于本國的實際情況,完善我國登記不實的法律規(guī)制體系,為權(quán)利人撐起一把遮風(fēng)擋雨的“救濟(jì)之傘”。 為了先在理論上確立對公司登記不實的認(rèn)識,引起人們對登記不實的關(guān)注和重視,不得不對公司登記不實重新加以定義,在責(zé)任主體的標(biāo)準(zhǔn)下對第三人權(quán)利影響較大的幾類登記不實行為重點討論。在對公司登記不實境外法律規(guī)制進(jìn)行分析的過程中,先從宏觀上把握兩大法系關(guān)于公司登記的立法特點,再從微觀層面選取三個有代表性國家和地區(qū)的公司法說明對登記不實行為規(guī)制的完善程度,從而凸顯我國公司登記不實的法律規(guī)制存在的缺陷,為分析、解決我國實踐中的問題打下基礎(chǔ)�；趯饬⒎ìF(xiàn)狀認(rèn)識得出,我國對公司登記不實的法律規(guī)制的構(gòu)建應(yīng)從公司登記不實有關(guān)民事責(zé)任機(jī)制、登記機(jī)關(guān)審查權(quán)責(zé)、公司登記相關(guān)公示制度、公司年檢制度的層面來提出合理化的建議。
[Abstract]:When the balance of value of company registration is vacillating in safety and efficiency, the legislators of our country add the value weight to the safe side, the core of which is to ensure the security and order of the transaction. Due to the intervention of public power, the effect of public law appears in the process of company registration. In contrast, after the completion of registration, the effect of private law occupies a dominant position, and the legal performance and consequences of false company registration occur in this stage. When the obligee suffers damage due to false company registration but can not get relief, especially in private law, it has to be suspected that the value of security has been distorted in it. In foreign countries, such as Germany, France and the United States, there are deep and systematic regulations on the false registration of companies. At present, the research on the company registration system in our country is still in the state of "marginalization", and most of the domestic studies remain at the theoretical level, such as the effectiveness, nature and scope of registration. The perfection of legal liability of false registration, especially the construction of civil liability is very little; On the legislative level of our country, the provisions of registration law are scattered, and some of the subjects of false legal liability of company registration are only investigated for the administrative responsibility and criminal law liability of the perpetrator, and the civil liability is very lacking and single. In reality, the third party who suffered losses is more willing to investigate the civil liability of the perpetrator to make up for his loss. Thus, the contradiction between the theory of false registration, legislation and reality is particularly prominent. With the development of market economy, everyone is likely to face the problem of investment and a world ruled by strangers. Although we are free to choose the object, the way and the content of the transaction, we still have to entrust our transaction safety to strangers who have never met each other. The professional quality and professional ethics of strangers determine the coefficient of transaction risk. Under the social environment of lack of personal integrity, the author tries to draw lessons from the experience of foreign legislation, based on the actual situation of our country, perfect the legal regulation system of false registration in our country, and support a relief umbrella for the right holders to protect themselves from the wind and rain. In order to establish the understanding of false company registration in theory and arouse people's attention to the false registration, we have to redefine the false registration of the company. It is discussed emphatically that several kinds of registration which have great influence on the rights of the third party under the criterion of the subject of responsibility. In the process of analyzing the foreign legal regulation of false company registration, we first grasp the legislative characteristics of the two major legal systems on company registration from a macro perspective. Then select three representative countries and regions from the micro level of the company law notes the degree of perfection of not implementing the registration as the regulation, thus highlighting the defects of the false legal regulation of company registration in China, for the analysis. To solve the problems in China's practice and lay the foundation. Based on the understanding of the current situation of foreign legislation, it is concluded that the construction of the legal regulation of false company registration in our country should be based on the civil liability mechanism of false company registration, the examination of the right and responsibility of the registration authority, and the public announcement system related to the company registration. The company annual inspection system to put forward the level of rationalization of the proposal.
【學(xué)位授予單位】：湖南師范大學(xué)
【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：2387709
[Abstract]:When the balance of value of company registration is vacillating in safety and efficiency, the legislators of our country add the value weight to the safe side, the core of which is to ensure the security and order of the transaction. Due to the intervention of public power, the effect of public law appears in the process of company registration. In contrast, after the completion of registration, the effect of private law occupies a dominant position, and the legal performance and consequences of false company registration occur in this stage. When the obligee suffers damage due to false company registration but can not get relief, especially in private law, it has to be suspected that the value of security has been distorted in it. In foreign countries, such as Germany, France and the United States, there are deep and systematic regulations on the false registration of companies. At present, the research on the company registration system in our country is still in the state of "marginalization", and most of the domestic studies remain at the theoretical level, such as the effectiveness, nature and scope of registration. The perfection of legal liability of false registration, especially the construction of civil liability is very little; On the legislative level of our country, the provisions of registration law are scattered, and some of the subjects of false legal liability of company registration are only investigated for the administrative responsibility and criminal law liability of the perpetrator, and the civil liability is very lacking and single. In reality, the third party who suffered losses is more willing to investigate the civil liability of the perpetrator to make up for his loss. Thus, the contradiction between the theory of false registration, legislation and reality is particularly prominent. With the development of market economy, everyone is likely to face the problem of investment and a world ruled by strangers. Although we are free to choose the object, the way and the content of the transaction, we still have to entrust our transaction safety to strangers who have never met each other. The professional quality and professional ethics of strangers determine the coefficient of transaction risk. Under the social environment of lack of personal integrity, the author tries to draw lessons from the experience of foreign legislation, based on the actual situation of our country, perfect the legal regulation system of false registration in our country, and support a relief umbrella for the right holders to protect themselves from the wind and rain. In order to establish the understanding of false company registration in theory and arouse people's attention to the false registration, we have to redefine the false registration of the company. It is discussed emphatically that several kinds of registration which have great influence on the rights of the third party under the criterion of the subject of responsibility. In the process of analyzing the foreign legal regulation of false company registration, we first grasp the legislative characteristics of the two major legal systems on company registration from a macro perspective. Then select three representative countries and regions from the micro level of the company law notes the degree of perfection of not implementing the registration as the regulation, thus highlighting the defects of the false legal regulation of company registration in China, for the analysis. To solve the problems in China's practice and lay the foundation. Based on the understanding of the current situation of foreign legislation, it is concluded that the construction of the legal regulation of false company registration in our country should be based on the civil liability mechanism of false company registration, the examination of the right and responsibility of the registration authority, and the public announcement system related to the company registration. The company annual inspection system to put forward the level of rationalization of the proposal.
【學(xué)位授予單位】：湖南師范大學(xué)
【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(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 陳福廷;論我國公司登記公證制度的完善[D];上海師范大學(xué);2013年
，本文編號：2387709
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