論公司解散清算中債權(quán)人利益保護(hù)問題研究
發(fā)布時間：2019-02-22 10:16
【摘要】：任何事物的發(fā)展都具有兩面性。公司的發(fā)明既極大的推動了經(jīng)濟(jì)的發(fā)展,同時也給很多圖謀不軌之徒提供了侵害債權(quán)人合法利益的工具。自公司被發(fā)明之日起,公司債權(quán)人利益始終難以得到十分有效的保護(hù),究其根本原因是公司制度設(shè)計本身存在著瑕疵,即公司股東的有限責(zé)任和公司股東對公司的實際控制為公司損害債權(quán)人利益創(chuàng)造了條件。由于股東受公司有限責(zé)任原則的庇護(hù),長期以來,公司股東尤其是大股東和控股股東利用公司損害債權(quán)人利益的現(xiàn)象時有發(fā)生。即便公司法不斷完善和發(fā)展,但仍然難以彌補(bǔ)因公司有限責(zé)任制度而導(dǎo)致的公司股東與公司債權(quán)人之間的失衡格局。 與正常經(jīng)營的公司相比,公司解散后對債權(quán)人的利益影響更大,以為為公司解散后,公司即將消亡,公司對債權(quán)人的擔(dān)保由公司所有財產(chǎn)和公司經(jīng)營可能的獲利轉(zhuǎn)變?yōu)閱我坏墓舅胸敭a(chǎn)。公司解散后,債權(quán)人債權(quán)的實現(xiàn)依賴于對公司財產(chǎn)的分配,然而,由于被解散公司涉及的利益主體眾多和解散清算程序的復(fù)雜,債權(quán)人的債權(quán)要順利獲得受償并非易事。在我國,公司解散清算階段長期以來都是債權(quán)人利益受損的重災(zāi)區(qū),這種現(xiàn)象并未隨著我國《公司法司法解釋二》的實施而得到根本的好轉(zhuǎn)。不可否認(rèn),《公司法司法解釋二》是對公司解散清算制度的一次極大完善,但其過分局限于司法強(qiáng)制清算、清算程序規(guī)定不細(xì)、對清算組權(quán)利缺乏限制、清算期限規(guī)定留有口子及對公司解散后至清算組成立之前相關(guān)問題缺乏規(guī)定等不足也是客觀存在的�！豆痉ㄋ痉ń忉尪冯m然規(guī)定了債權(quán)人申請法院組織清算、申請更換清算組成員和損害賠償請求權(quán)等權(quán)利,但卻沒有規(guī)定任何債權(quán)人主主動參與或監(jiān)督公司解散清算程序的權(quán)利,這從一個側(cè)面體現(xiàn)了解散清算制度對債權(quán)人利益保護(hù)的消極。 通過對不同國家公司法的比較,基于債權(quán)人對被解散公司財產(chǎn)享有的現(xiàn)實利益,概括出公司解散清算階段債權(quán)人應(yīng)當(dāng)享有權(quán)利,同時,依據(jù)公司解散清算程序上的先后和公司解散、清算對債權(quán)人利益影響的不同,分別對公司解散階段和公司清算階段中債權(quán)人利益保護(hù)問題進(jìn)行了探討,結(jié)合公司解散清算制度較成熟國家的經(jīng)驗,深刻分析了我國公司解散清算程序保護(hù)債權(quán)人利益的不足。最后,結(jié)合我國的實際情況,針對我國公司解散清算程序存在的保護(hù)債權(quán)人利益不足問題,提出了幾點完善的建議。
[Abstract]:There are two sides to the development of anything. The invention of the company not only greatly promoted the economy, but also provided a tool for many conspirators to encroach on the legitimate interests of creditors. Since the company was invented, the interests of the creditors of the company have been difficult to get very effective protection, the fundamental reason is that there are defects in the design of the company system. That is, the limited liability of the shareholders and the actual control of the company create conditions for the company to harm the interests of creditors. As shareholders are sheltered by the principle of limited liability of the company, for a long time, the phenomenon that the shareholders, especially the majority shareholders and the controlling shareholders, use the company to harm the interests of creditors has occurred from time to time. Even though the company law continues to improve and develop, it is still difficult to make up for the imbalance between the shareholders and the creditors of the company caused by the limited liability system of the company. Compared with the normally operated company, after the dissolution of the company, it has a greater impact on the interests of the creditors, thinking that after the dissolution of the company, the company is about to die out. The company's guarantee to the creditors is changed from the property of the company and the possible profit from the operation of the company to the sole property of the company. After the dissolution of a company, the realization of creditor's rights depends on the distribution of the company's property. However, due to the large number of stakeholders involved in the dissolution of the company and the complexity of the liquidation procedure, it is not easy for the creditor's claim to be repaid smoothly. In our country, the period of company dissolution and liquidation has long been the worst disaster area where the interests of creditors have been damaged. This phenomenon has not been fundamentally improved with the implementation of Company Law explanation II in our country. Undeniably, the Company Law explanation II is a great improvement to the liquidation system of company dissolution, but it is too limited to judicial compulsory liquidation, the liquidation procedure is not detailed, and the rights of liquidation group are not restricted. Deficiencies such as the opening of the liquidation time limit and the lack of provisions on the relevant issues after the dissolution of the company and before the establishment of the liquidation group are also objective. Although interpretation 2 of the Company Law stipulates that creditors apply to the court for the organization of liquidation, The right to apply for the replacement of members of the liquidation committee and the right to claim damages, but not the right of any creditor owner to take the initiative to participate in or supervise the dissolution of the liquidation proceedings of the company, This reflects the disbandment liquidation system from a side to protect the interests of creditors negative. Through the comparison of different countries' company law, based on the realistic interests of creditors to the property of the company that was dissolved, the author generalizes that the creditors should have the rights in the liquidation stage of the company's dissolution, and at the same time, According to the difference between the procedure of company dissolution and liquidation and the influence of liquidation on the interests of creditors, this paper discusses the protection of creditors' interests in the stage of company dissolution and liquidation respectively. Based on the experience of the mature countries, this paper analyzes deeply the deficiency of the company dissolution and liquidation procedure to protect the creditors' interests in our country. Finally, according to the actual situation of our country, this paper puts forward some suggestions on how to protect the interests of creditors in the liquidation procedure of company dissolution.
【學(xué)位授予單位】：湖南大學(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：2428117
[Abstract]:There are two sides to the development of anything. The invention of the company not only greatly promoted the economy, but also provided a tool for many conspirators to encroach on the legitimate interests of creditors. Since the company was invented, the interests of the creditors of the company have been difficult to get very effective protection, the fundamental reason is that there are defects in the design of the company system. That is, the limited liability of the shareholders and the actual control of the company create conditions for the company to harm the interests of creditors. As shareholders are sheltered by the principle of limited liability of the company, for a long time, the phenomenon that the shareholders, especially the majority shareholders and the controlling shareholders, use the company to harm the interests of creditors has occurred from time to time. Even though the company law continues to improve and develop, it is still difficult to make up for the imbalance between the shareholders and the creditors of the company caused by the limited liability system of the company. Compared with the normally operated company, after the dissolution of the company, it has a greater impact on the interests of the creditors, thinking that after the dissolution of the company, the company is about to die out. The company's guarantee to the creditors is changed from the property of the company and the possible profit from the operation of the company to the sole property of the company. After the dissolution of a company, the realization of creditor's rights depends on the distribution of the company's property. However, due to the large number of stakeholders involved in the dissolution of the company and the complexity of the liquidation procedure, it is not easy for the creditor's claim to be repaid smoothly. In our country, the period of company dissolution and liquidation has long been the worst disaster area where the interests of creditors have been damaged. This phenomenon has not been fundamentally improved with the implementation of Company Law explanation II in our country. Undeniably, the Company Law explanation II is a great improvement to the liquidation system of company dissolution, but it is too limited to judicial compulsory liquidation, the liquidation procedure is not detailed, and the rights of liquidation group are not restricted. Deficiencies such as the opening of the liquidation time limit and the lack of provisions on the relevant issues after the dissolution of the company and before the establishment of the liquidation group are also objective. Although interpretation 2 of the Company Law stipulates that creditors apply to the court for the organization of liquidation, The right to apply for the replacement of members of the liquidation committee and the right to claim damages, but not the right of any creditor owner to take the initiative to participate in or supervise the dissolution of the liquidation proceedings of the company, This reflects the disbandment liquidation system from a side to protect the interests of creditors negative. Through the comparison of different countries' company law, based on the realistic interests of creditors to the property of the company that was dissolved, the author generalizes that the creditors should have the rights in the liquidation stage of the company's dissolution, and at the same time, According to the difference between the procedure of company dissolution and liquidation and the influence of liquidation on the interests of creditors, this paper discusses the protection of creditors' interests in the stage of company dissolution and liquidation respectively. Based on the experience of the mature countries, this paper analyzes deeply the deficiency of the company dissolution and liquidation procedure to protect the creditors' interests in our country. Finally, according to the actual situation of our country, this paper puts forward some suggestions on how to protect the interests of creditors in the liquidation procedure of company dissolution.
【學(xué)位授予單位】：湖南大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D922.291.91
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