股东出资瑕疵法律责任问题研究

发布时间：2018-04-09 03:26

本文选题：股东　切入点：出资瑕疵　出处：《沈阳师范大学》2010年硕士论文

【摘要】：股东的出资是公司成立的基础,若股东出资存在瑕疵,则不仅影响了公司的资本充实原则,对公司的整体运营及整个社会主义市场经济秩序都造成了消极影响。本文第一部分对股东出资瑕疵进行了概念性的分析,提出出资瑕疵是指出资人或股东进行的不符合法律、章程或出资人协议约定的货币或非货币出资,包括虚假出资,抽逃出资、未足额出资、延迟出资、不适当履行出资等表现形式。继而对股东承担出资瑕疵责任的价值进行分析,指出对股东出资瑕疵进行规制是对公司、公司其他股东及债权人利益的保护,认为其价值基础在于股东平等原则、公平正义理念及利益平衡理论；第二部分阐述了股东出资瑕疵行为的效力,围绕出资瑕疵股东能否取得股东资格及股东权利的问题指出股东的出资虽然存在瑕疵,但因其已经合法载明于公司股东名册之中,且经过合法的工商登记,应具有股东资格享有股东权利。但因其出资存在瑕疵,故认为股东的股东权利也存在瑕疵,以保护公司、公司其他股东及有关债权人的利益；第三部分分析了股东出资瑕疵救济的立法发展,指出了国外的一些国家对出资瑕疵的救济方式,包括实体性的救济及程序性的救济。我国则将出资瑕疵的责任划分为民事责任、行政责任及刑事责任；区分出资瑕疵股东对公司的责任、对公司其他依法履行出资义务的股东的责任及对有关债权人的责任,以及验资、评估机构和董事、监事、公司高级管理人员对出资瑕疵的法律责任；文章第四部分针对我国现行法律对出资瑕疵问题规制不足的问题提出了几点构想,首先指出我国现行出资瑕疵责任体系仍不健全,出资瑕疵股东对公司、公司其他股东及债权的责任存在问题,且举证责任的分配也存在不合理的问题,行政责任、刑事责任比重明显超过民事责任,认为我国应当在实体和程序两方面借鉴国外国家的立法例,建立健全我国出资瑕疵责任体系,包括扩大股东出资瑕疵的外延、明确出资瑕疵对公司、公司其他股东以及债权人的责任,并将出资瑕疵股东与债权人的举证责任进行倒置,在行政责任、刑事责任与民事责任并存时优先适用民事责任,以符合公司法的立法本旨；程序方面应当完善出资瑕疵责任的承担方式,包括规定公司出资追缴权、规定利息罚则和定金罚则、规定失权程序等。
[Abstract]:The capital contribution of shareholders is the foundation of the establishment of the company. If the shareholders' contribution is defective, it will not only affect the principle of capital enrichment of the company, but also have a negative impact on the whole operation of the company and the whole order of the socialist market economy.In the first part of this paper, the author makes a conceptual analysis of the defect of shareholder's contribution, and puts forward that the defect of capital contribution refers to the non-monetary or non-monetary contribution, including the false contribution, which is not in accordance with the law, articles of association or the agreement of the investor, which is carried out by the investor or the shareholder.Absconding investment, not fully funded, delayed investment, improper performance of such forms of investment.Then it analyzes the value of shareholders' responsibility for the defect of capital contribution, and points out that the regulation of the defect of shareholders' contribution is the protection of the interests of the company, other shareholders and creditors, and the value basis of the regulation lies in the principle of equality of shareholders.The second part expounds the effectiveness of the defect behavior of shareholders' contribution, and points out that the shareholder's contribution is flawed, and the problem of whether the shareholders can obtain the qualification of shareholders and the rights of shareholders is pointed out.However, because it has been legally stated in the company's stockholder register and has been legally registered for industry and commerce, it should have shareholder rights.However, due to the defects in its contribution, the shareholders' rights are also defective to protect the interests of the company, other shareholders and the creditors concerned. The third part analyzes the legislative development of the remedy for the defect of shareholders' contribution.This paper points out the ways of relief to the defect of capital contribution in some foreign countries, including substantial relief and procedural relief.In our country, the liability of defective capital contribution is divided into civil liability, administrative liability and criminal liability, and the liability of shareholders to the company, to other shareholders who perform their contribution obligation according to law and to the creditors concerned.As well as the legal responsibility of capital verification, appraisal institution and directors, supervisors and senior managers of the company for the defect of capital contribution. The fourth part of the article puts forward some ideas on the insufficient regulation of the defect of capital contribution in the current law of our country.First of all, it points out that the current liability system of defective capital contribution in our country is still not perfect, and there are problems in the liability of shareholders to the company, other shareholders and creditor's rights of the company, and the distribution of the burden of proof is also unreasonable.The proportion of criminal liability is obviously higher than that of civil liability, so we should draw lessons from the legislation of foreign countries in both substantive and procedural aspects, and establish and improve the liability system of defective investment in our country, including expanding the extension of defect of shareholder's contribution.It is clear that the liability of the investment defect to the company, other shareholders of the company and the creditors, and the burden of proof of the shareholders and creditors of the defective capital contribution should be reversed, and the civil liability should be applied first when administrative liability, criminal liability and civil liability coexist.In order to conform to the legislative aim of the company law, we should perfect the way to assume the liability for the defect of capital contribution in the procedural aspect, including the stipulation of the right of the company to contribute and recover, the stipulation of the penalty of interest and the penalty of the deposit, the procedure of the loss of the right, etc.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91

【引证文献】