公司設(shè)立無效下的債權(quán)人利益保護機制
發(fā)布時間：2019-06-17 08:51
【摘要】：保護公司、股東、債權(quán)人的合法權(quán)益是我國公司法的立法宗旨,但由于“效率至上”和“股東中心主義”立法理念的影響,過度重視對股東和公司利益的保護,我國公司法律對于債權(quán)人利益的保護存在嚴(yán)重缺陷。如何對公司設(shè)立無效紛爭中的債權(quán)人提供有效的法律保護,見諸于我國學(xué)界和實務(wù)界廣泛的研究和討論中,然而,目前有關(guān)文獻的論述僅僅關(guān)注了法律制度的移植,而鮮有從本土化和價值向度的角度對我國立法的缺陷進行解讀和反思。 本文重點從保護交易安全、注重制度公平的角度出發(fā)對我國公司設(shè)立無效下的債權(quán)人利益保護機制的完善進行了探討： 第一,本文首先從公司設(shè)立無效的法律認(rèn)定、公司設(shè)立無效與債權(quán)人利益保護的關(guān)系、公司設(shè)立無效下債權(quán)人利益保護機制的制度價值三個方面出發(fā),論述了我國公司設(shè)立無效下債權(quán)人利益保護機制的基本理論；其次通過考察我國公司設(shè)立無效下債權(quán)人利益保護機制的立法現(xiàn)狀和局限、司法現(xiàn)狀和困境,揭示了完善我國公司設(shè)立無效下債權(quán)人利益保護機制的現(xiàn)實必要性。通過前述研究為完善我國公司設(shè)立無效下債權(quán)人利益保護機制奠定理論和現(xiàn)實基礎(chǔ)。 第二,本文通過大陸法系和英美法系主要代表國家和地區(qū)有關(guān)公司設(shè)立無效下債權(quán)人利益保護的法律原則、訴訟制度、救濟渠道的詳細(xì)考察,揭示了注重對包括債權(quán)人在內(nèi)的公司利益相關(guān)者的法律救濟和保護,在立法理念上對效率至上的立法原則進行公平矯正,注重法律的系統(tǒng)和嚴(yán)密,是兩大法系主要國家和地區(qū)顯著的共性,表明我國完善公司設(shè)立無效下債權(quán)人利益保護機制,是推進法治現(xiàn)代化的重要方向。 第三,本文從立法的價值向度出發(fā),提出完善我國公司設(shè)立無效下的債權(quán)人利益保護機制必須實現(xiàn)三大價值觀念的轉(zhuǎn)換,并以立法價值理念轉(zhuǎn)換為前提,提出制度完善的具體構(gòu)想；①首先借鑒臺灣的相關(guān)立法,正視我國公司法公司瑕疵設(shè)立行政撤銷模式的制度缺陷,從限縮和規(guī)范行政權(quán)力,公平保護公司利益相關(guān)者的角度出發(fā),確立我國公司設(shè)立無效的司法裁決制度；②為保障債權(quán)人的債權(quán)安全,改變債權(quán)人對公司信息獲取的不利處境,對無效公司的審計和公司經(jīng)營期間的公示事項進行細(xì)化和規(guī)范；③借鑒美國等國家的公司治理經(jīng)驗,規(guī)定公司治理機制中設(shè)立債權(quán)人委員會,由債權(quán)人委員會對攸關(guān)自身利益的公司經(jīng)營事項參與公司決策,以保障債權(quán)安全；④完善公司設(shè)立無效下的責(zé)任追究制度和債務(wù)清償原則,規(guī)定公司董事、負(fù)責(zé)人、直接關(guān)系人就公司瑕疵設(shè)立存在的嚴(yán)重過錯承擔(dān)民事、行政、刑事責(zé)任,以規(guī)范公司設(shè)立行為,擴大債權(quán)追索的主體范圍,保護交易安全。 本文的創(chuàng)新在于：①注重法律移植的本土化,通過考察大陸法系、英美法系主要國家和地區(qū)的相關(guān)機制,以我國公司設(shè)立無效下債權(quán)人利益保護的現(xiàn)狀和局限為基礎(chǔ),在此基礎(chǔ)上完善相關(guān)制度,以提高立法的針對性和實用性；②注重對法律價值的分析和運用,主張我國公司設(shè)立無效下債權(quán)人利益保護機制的完善,首要的問題在于立法價值理念的轉(zhuǎn)換,就我國立法現(xiàn)狀而言,重點在于改變對公司和股東過分保護的模式,關(guān)注包括公司債權(quán)人在內(nèi)的公司利益相關(guān)者利益的法律保護,以實現(xiàn)法律制度的內(nèi)在公平。 本文的主要不足是：由于信息化還未得到全面普及,在寫作過程中筆者一直試圖收集公司設(shè)立無效糾紛的訴訟案例,選取其中的典型案件為樣本以對論題進行實證分析,但效果甚微,對研究成果的價值和意義造成了一定的消極影響。
[Abstract]:To protect the lawful rights and interests of the company, the shareholders and the creditors is the legislative purpose of the Company Law of our country, but due to the influence of the efficiency first and the shareholder-centrism's legislative idea, the protection of the shareholders and the interests of the company is paid too much, and the law of our company has serious defects in the protection of the interests of the creditors. How to provide effective legal protection to the creditors in the establishment of an invalid dispute in the company, see the extensive research and discussion in the academic and practical circles of our country, however, the present discussion of the literature is only concerned with the transplantation of the legal system, However, it is rare to interpret and reflect on the defects of our country's legislation from the angle of localization and value. This paper focuses on the improvement of the protection mechanism of the creditor's interest under the ineffectiveness of the establishment of our company from the point of view of protecting the transaction security and paying attention to the system fairness. First, this article first set up an invalid method from the company According to the law, the relationship between the establishment of the company and the protection of the interests of the creditors, the establishment of the system value of the protection mechanism of the creditor's interests under the effect of the establishment of the company are three aspects, and the basis of the establishment of the mechanism for the protection of the interests of the creditor under the effect of the establishment of the company is discussed. Secondly, through the investigation of the status and limitation of the legislation of the creditor's interest protection mechanism in our country, the present situation and the dilemma of the judicial system, this paper reveals the reality of perfecting the protection mechanism of the creditor's interest under the ineffectiveness of our company. The necessity of establishing the theory and present for perfecting the protection mechanism of the creditor's interest under the ineffectiveness of our company through the above-mentioned research The second, through the continental law system and the Anglo-American law system, the legal principle, the litigation system and the relief channel of the protection of the interests of the creditors are mainly represented by the relevant companies in the countries and regions. The detailed investigation of the legal relief and protection of the company's stakeholders, including the creditors, is to make a fair correction to the legislative principle of efficiency first in the legislative concept, pay attention to the system of law and the law, and it is the main country and region of the two legal systems The remarkable commonness shows that the establishment of an invalid creditor's interest protection mechanism in our country is the promotion of the modernization of the rule of law Third, from the view of the value of the legislation, this paper puts forward that the mechanism of protecting the interests of the creditor under the condition of the establishment of our company must realize the transformation of the three values, and put forward the system based on the conversion of the concept of the legislative value. On the basis of the relevant legislation of Taiwan, we should first use the relevant legislation of Taiwan, and face the defects of the system defect of the company's company law company, and set up the ineffectiveness of the establishment of our company from the angle of the limitation and the regulation of the administrative power and the fair protection of the company's stakeholders. The system of judicial decision; in order to guarantee the security of the creditor's rights, change the unfavorable situation of the creditor to the information of the company, and refine and standardize the public announcement matters during the audit of the invalid company and the operation period of the company; and draw lessons from the countries such as the United States The company's corporate governance experience, which provides for the establishment of a creditor committee in the corporate governance mechanism, is involved in the company's decision-making by the creditor committee to engage in the company's decision-making in order to guarantee the safety of the creditor's rights, and to improve the system of accountability and the principle of the repayment of the debt in the case of the establishment of the company, and to provide for the public The directors, principal and direct persons of the Division shall be responsible for the civil, administrative and criminal responsibility for the serious fault in the establishment of the Company's defects, to standardize the establishment of the Company and to extend the scope of the recourse of the creditor's rights. The innovation of this paper is to focus on the localization of the legal transplant, through the investigation of the relevant mechanisms of the main countries and regions of the continental law system and the common law system, based on the present situation and the limitation of the protection of the interests of the creditor under the ineffectiveness of our company, here On the basis of improving the relevant system, so as to improve the pertinence and practicability of the legislation, we should pay more attention to the analysis and application of the legal value, and advocate the perfection of the protection mechanism of the creditor's interest under the ineffectiveness of our company, and the first question is the conversion of the concept of the legislative value. In the light of the present situation of our country's legislation, the focus is to change the pattern of over-protection of the company and the shareholders, pay attention to the legal protection of the interests of the company's stakeholders, including the company's creditors, in order to realize In the process of writing, the author has been trying to collect the case of an invalid dispute in the company, and select the typical case as the sample for the purpose of the thesis. An empirical analysis is made, but the effect is very little, and the value and meaning of the research results
【學(xué)位授予單位】：西南財經(jīng)大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D922.291.91
本文編號：2500866
[Abstract]:To protect the lawful rights and interests of the company, the shareholders and the creditors is the legislative purpose of the Company Law of our country, but due to the influence of the efficiency first and the shareholder-centrism's legislative idea, the protection of the shareholders and the interests of the company is paid too much, and the law of our company has serious defects in the protection of the interests of the creditors. How to provide effective legal protection to the creditors in the establishment of an invalid dispute in the company, see the extensive research and discussion in the academic and practical circles of our country, however, the present discussion of the literature is only concerned with the transplantation of the legal system, However, it is rare to interpret and reflect on the defects of our country's legislation from the angle of localization and value. This paper focuses on the improvement of the protection mechanism of the creditor's interest under the ineffectiveness of the establishment of our company from the point of view of protecting the transaction security and paying attention to the system fairness. First, this article first set up an invalid method from the company According to the law, the relationship between the establishment of the company and the protection of the interests of the creditors, the establishment of the system value of the protection mechanism of the creditor's interests under the effect of the establishment of the company are three aspects, and the basis of the establishment of the mechanism for the protection of the interests of the creditor under the effect of the establishment of the company is discussed. Secondly, through the investigation of the status and limitation of the legislation of the creditor's interest protection mechanism in our country, the present situation and the dilemma of the judicial system, this paper reveals the reality of perfecting the protection mechanism of the creditor's interest under the ineffectiveness of our company. The necessity of establishing the theory and present for perfecting the protection mechanism of the creditor's interest under the ineffectiveness of our company through the above-mentioned research The second, through the continental law system and the Anglo-American law system, the legal principle, the litigation system and the relief channel of the protection of the interests of the creditors are mainly represented by the relevant companies in the countries and regions. The detailed investigation of the legal relief and protection of the company's stakeholders, including the creditors, is to make a fair correction to the legislative principle of efficiency first in the legislative concept, pay attention to the system of law and the law, and it is the main country and region of the two legal systems The remarkable commonness shows that the establishment of an invalid creditor's interest protection mechanism in our country is the promotion of the modernization of the rule of law Third, from the view of the value of the legislation, this paper puts forward that the mechanism of protecting the interests of the creditor under the condition of the establishment of our company must realize the transformation of the three values, and put forward the system based on the conversion of the concept of the legislative value. On the basis of the relevant legislation of Taiwan, we should first use the relevant legislation of Taiwan, and face the defects of the system defect of the company's company law company, and set up the ineffectiveness of the establishment of our company from the angle of the limitation and the regulation of the administrative power and the fair protection of the company's stakeholders. The system of judicial decision; in order to guarantee the security of the creditor's rights, change the unfavorable situation of the creditor to the information of the company, and refine and standardize the public announcement matters during the audit of the invalid company and the operation period of the company; and draw lessons from the countries such as the United States The company's corporate governance experience, which provides for the establishment of a creditor committee in the corporate governance mechanism, is involved in the company's decision-making by the creditor committee to engage in the company's decision-making in order to guarantee the safety of the creditor's rights, and to improve the system of accountability and the principle of the repayment of the debt in the case of the establishment of the company, and to provide for the public The directors, principal and direct persons of the Division shall be responsible for the civil, administrative and criminal responsibility for the serious fault in the establishment of the Company's defects, to standardize the establishment of the Company and to extend the scope of the recourse of the creditor's rights. The innovation of this paper is to focus on the localization of the legal transplant, through the investigation of the relevant mechanisms of the main countries and regions of the continental law system and the common law system, based on the present situation and the limitation of the protection of the interests of the creditor under the ineffectiveness of our company, here On the basis of improving the relevant system, so as to improve the pertinence and practicability of the legislation, we should pay more attention to the analysis and application of the legal value, and advocate the perfection of the protection mechanism of the creditor's interest under the ineffectiveness of our company, and the first question is the conversion of the concept of the legislative value. In the light of the present situation of our country's legislation, the focus is to change the pattern of over-protection of the company and the shareholders, pay attention to the legal protection of the interests of the company's stakeholders, including the company's creditors, in order to realize In the process of writing, the author has been trying to collect the case of an invalid dispute in the company, and select the typical case as the sample for the purpose of the thesis. An empirical analysis is made, but the effect is very little, and the value and meaning of the research results
【學(xué)位授予單位】：西南財經(jīng)大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2010
【分類號】：D922.291.91
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