冒名處分他人股權(quán)法律問(wèn)題研究
發(fā)布時(shí)間：2018-09-18 08:14
【摘要】：我國(guó)處于社會(huì)轉(zhuǎn)型的關(guān)鍵時(shí)期,經(jīng)濟(jì)高速發(fā)展而相應(yīng)的道德建設(shè)不到位致使社會(huì)誠(chéng)信意識(shí)淡薄,加上相應(yīng)的制度保障的缺失,冒名處分他人股權(quán)的現(xiàn)象層出不窮。冒名處分他人股權(quán)嚴(yán)重危害了市場(chǎng)交易秩序,損害了原股權(quán)人、交易相對(duì)人、公司和公司其他股東以及后續(xù)股權(quán)轉(zhuǎn)讓后手的利益。但是,學(xué)界并未對(duì)該問(wèn)題給予重視,且僅有的研究也集中在以無(wú)權(quán)處分和無(wú)權(quán)代理等傳統(tǒng)的民法觀點(diǎn)來(lái)分析,有拿來(lái)主義之嫌。冒名處分股權(quán)不是民法上的無(wú)權(quán)處分,無(wú)權(quán)處分人需為工商登記權(quán)利人,而被轉(zhuǎn)讓的股權(quán)并非登記在冒名人名下。冒名處分他人股權(quán)也不同于無(wú)權(quán)代理,與冒名人交易的相對(duì)人認(rèn)為冒名人即股權(quán)所有人,不存在第三方當(dāng)事人;而無(wú)權(quán)代理中相對(duì)人認(rèn)為與其實(shí)際交易的對(duì)象是被代理人,與其直接接觸的人是代理人。實(shí)務(wù)中對(duì)該問(wèn)題的判定也大相徑庭,故有必要對(duì)冒名處分股權(quán)問(wèn)題進(jìn)行系統(tǒng)梳理,探究一套合理可行的解決問(wèn)題的機(jī)制。冒名處分股權(quán)不同于冒名股東以及名義股東處分代持股份的情形,是股權(quán)轉(zhuǎn)讓中具有獨(dú)特性質(zhì)的一類型,具有意思虛假、印簽偽造、形式非法等特征。由于冒名處分他人股權(quán)的復(fù)雜性和層次性,對(duì)其效力的認(rèn)定是解決這一問(wèn)題的重要環(huán)節(jié),涉及到冒名處分股權(quán)行為和簽訂的協(xié)議的效力的認(rèn)定及冒名處分他人股權(quán)致股權(quán)發(fā)生實(shí)際轉(zhuǎn)讓的法律效力。當(dāng)事人無(wú)合意及商事外觀主義原則有利于對(duì)冒名處分他人股權(quán)的效力作出判斷。外觀主義對(duì)于判定股權(quán)的最終歸屬極具優(yōu)勢(shì),有利于該問(wèn)題科學(xué)順暢的解決。遏制冒名處分他人股權(quán)的發(fā)生最終要落實(shí)到責(zé)任的承擔(dān)。由于商事活動(dòng)影響范圍廣泛,在維護(hù)公平的同時(shí)更應(yīng)兼顧交易安全和效率,確立歸責(zé)原則至關(guān)重要,在保護(hù)原股權(quán)人的同時(shí)不破壞市場(chǎng)活動(dòng)的持續(xù)健康發(fā)展。
[Abstract]:Our country is in the critical period of social transformation, the rapid development of economy and the corresponding moral construction are not in place, resulting in a weak sense of social integrity, coupled with the lack of corresponding system protection, the phenomenon of impersonation of other people's equity rights appears one after another. Impersonating the rights of others seriously endangers the order of market transactions, and damages the interests of the original stockholders, the relative parties, the company and other shareholders of the company and the subsequent shareholders of the company. However, scholars do not pay attention to this issue, and the only research focused on the unauthorized disposition and unauthorized agency and other traditional views of civil law analysis, there is a suspicion of doctrine. It is not the unauthorized disposition in civil law to dispose the shares under false name, and the person who has no right to dispose is the holder of the right of industrial and commercial registration, while the transferred equity is not registered in the name of the impostor. The opposite party who deals with the impostor thinks that the impostor is the owner of the stock right, and there is no third party, while the relative party in the unauthorized agent thinks that the object of the transaction with the impostor is the principal. The person in direct contact with him is an agent. In practice, the judgment of this problem is also quite different, so it is necessary to systematically sort out the issue of impersonating the disposition of equity, and to explore a reasonable and feasible mechanism to solve the problem. The disposition of shares under false name is different from that of share-holders by share-holders and nominal shareholders. It is a kind of special nature in the transfer of shares, which has the characteristics of false intention, forged stamp, illegal form, and so on. Because of the complexity and hierarchy of the impersonation of other people's equity, the determination of its effectiveness is an important link to solve this problem. It involves the confirmation of the validity of the action and the agreement signed, and the legal effect of the actual transfer of the shares caused by the false disposition of the shares of others. The principle of disapproval and commercial appearance is helpful to judge the effect of dishonest disposition of other people's shares. Externalism has great advantages in judging the ownership of equity, and is conducive to the scientific and smooth solution of the problem. To curb the occurrence of false disposition of other people's equity rights, the ultimate implementation of the responsibility. Because of the extensive influence of commercial activities, it is necessary to maintain fairness and give consideration to transaction security and efficiency. It is very important to establish the principle of imputation, which not only protects the original stockholders, but also does not destroy the sustained and healthy development of market activities.
【學(xué)位授予單位】：湖南大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D922.291.91
[Abstract]:Our country is in the critical period of social transformation, the rapid development of economy and the corresponding moral construction are not in place, resulting in a weak sense of social integrity, coupled with the lack of corresponding system protection, the phenomenon of impersonation of other people's equity rights appears one after another. Impersonating the rights of others seriously endangers the order of market transactions, and damages the interests of the original stockholders, the relative parties, the company and other shareholders of the company and the subsequent shareholders of the company. However, scholars do not pay attention to this issue, and the only research focused on the unauthorized disposition and unauthorized agency and other traditional views of civil law analysis, there is a suspicion of doctrine. It is not the unauthorized disposition in civil law to dispose the shares under false name, and the person who has no right to dispose is the holder of the right of industrial and commercial registration, while the transferred equity is not registered in the name of the impostor. The opposite party who deals with the impostor thinks that the impostor is the owner of the stock right, and there is no third party, while the relative party in the unauthorized agent thinks that the object of the transaction with the impostor is the principal. The person in direct contact with him is an agent. In practice, the judgment of this problem is also quite different, so it is necessary to systematically sort out the issue of impersonating the disposition of equity, and to explore a reasonable and feasible mechanism to solve the problem. The disposition of shares under false name is different from that of share-holders by share-holders and nominal shareholders. It is a kind of special nature in the transfer of shares, which has the characteristics of false intention, forged stamp, illegal form, and so on. Because of the complexity and hierarchy of the impersonation of other people's equity, the determination of its effectiveness is an important link to solve this problem. It involves the confirmation of the validity of the action and the agreement signed, and the legal effect of the actual transfer of the shares caused by the false disposition of the shares of others. The principle of disapproval and commercial appearance is helpful to judge the effect of dishonest disposition of other people's shares. Externalism has great advantages in judging the ownership of equity, and is conducive to the scientific and smooth solution of the problem. To curb the occurrence of false disposition of other people's equity rights, the ultimate implementation of the responsibility. Because of the extensive influence of commercial activities, it is necessary to maintain fairness and give consideration to transaction security and efficiency. It is very important to establish the principle of imputation, which not only protects the original stockholders, but also does not destroy the sustained and healthy development of market activities.
【學(xué)位授予單位】：湖南大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D922.291.91
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