股东压迫行为事由下的司法解散制度研究
发布时间：2018-09-04 16:42
【摘要】：司法解散是公司解散的重要类型之一,其可以对公司进行司法干预,在公司股东的多种退出机制中,起着不可替代的作用,同时在保护股东、债权人、其他利害关系人、国家、集体的利益上也有着极其重要的意义。它的重点价值在于对股东利益以及其他利害关系人整体利益的保护,其作为一种有效的股东退出公司途径,在解决封闭公司问题上具有举足轻重的作用。因此,司法解散制度的存在无疑可以有效解决最常见的封闭公司情况之一---股东压迫行为,使得包括受压迫股东在内的所有股东欲达到退出公司的目的而不能时,可以有效摆脱封闭环境的束缚。故而,国外大多数国家均将公司僵局与股东压迫行为作为司法解散的两大法定解散事由,从而有效地保护股东以及利益相关者的利益。而我国新公司法第一百八十三条却仅是针对公司僵局状态下的司法解散制度,并未将股东压迫行为纳入司法解散适用对象,即我国并未建立股东压迫行为事由下的司法解散制度,从而使得实践中普遍存在的股东压迫这一行为并没有得到真正的立法解决,使得存在股东压迫行为时股东仍然没有有效的退出机制,不得不谓一大立法缺陷。 因此,笔者在对外国法进行比较与借鉴、阐述我国股东压迫行为进行司法解散的理论依据的基础上,同时鉴于司法解散制度的强烈性与彻底性,在设置一系列限制条件的前提下,试图研究建立完善我国股东压迫行为事由下的司法解散制度,满足实践需要、填补立法空白,构建存在股东压迫行为时的股东有效退出机制。 具体而言: 第一章,笔者首先介绍司法解散制度的相关理论与价值,概括描述国外司法解散的两大法定解散事由:公司僵局与股东压迫行为,并阐述了股东压迫行为的立法与概念演进; 第二章,笔者抛去公司僵局这一较为传统的解散事由不谈,以股东压迫行为为重点,重点阐述国外股东压迫行为的判定方法与典型适用情形,分析各国股东压迫行为形成的共通性成因,明确股东压迫行为带来的危害; 第三章,笔者主要分析我国股东压迫行为的实践、理论与法律困境,以及此些困境形成的中国特色因素,从不同的主体角度阐述构建我国股东压迫行为事由下的司法解散制度的必要性。同时也在本章阐述了股东压迫行为进行司法解散的理论基础; 第四章,笔者试图从三种宏观原则、实体与程序微观设计、两种防御机制的设计三方面对我国股东压迫行为事由下的司法解散制度进行理性完善。首先,笔者设计了行使此制度时需要把握的三个原则,继而笔者对此制度的保护利益与适用对象、判定方法与典型适用情形、当事人、管辖、判决效力、调解前置程序等实体与程序两大方面进行微观设想,最后以担保制度与赔偿责任对股东压迫行为事由下的司法解散制度进行防御性防范。
[Abstract]:Judicial dissolution is one of the important types of dissolution of the company. It can intervene the company judicially. It plays an irreplaceable role in the various withdrawal mechanisms of the shareholders of the company, while protecting shareholders, creditors, other interested parties and the state. The collective interest also has the extremely important significance. As an effective way for shareholders to withdraw from a company, it plays an important role in solving the problem of closed company. Therefore, there is no doubt that the existence of judicial dissolution system can effectively solve one of the most common closed company situations-shareholder oppression, so that all shareholders, including oppressed shareholders, can not achieve the purpose of withdrawing from the company. Can effectively get rid of the shackles of the closed environment. Therefore, most foreign countries regard corporate deadlock and shareholder oppression as two major legal dissolution reasons of judicial dissolution, so as to effectively protect the interests of shareholders and stakeholders. Article 183 of the new Company Law of our country is only aimed at the judicial dissolution system under the situation of the deadlock of the company, and does not bring the oppressive behavior of shareholders into the applicable object of judicial dissolution. That is, our country has not established the judicial dissolution system under the reason of shareholders' oppressive behavior, so that the widespread practice of shareholder oppression has not been truly resolved by legislation. It makes the shareholders still have no effective exit mechanism in the existence of shareholder oppression, which has to be said to be a major legislative defect. Therefore, on the basis of comparing and drawing lessons from foreign laws, the author expounds the theoretical basis of judicial dissolution of the oppressive behavior of shareholders in China, and at the same time, in view of the intensity and thoroughness of judicial dissolution system, On the premise of setting up a series of restrictive conditions, this paper attempts to establish and perfect the judicial dissolution system under the circumstances of the oppressive behavior of shareholders in our country, to meet the practical needs, to fill in the blank of legislation, and to construct the effective withdrawal mechanism of shareholders when the oppressive behavior of shareholders exists. In the first chapter, the author first introduces the theory and value of judicial dissolution system, and describes the two main legal dissolution reasons: corporate deadlock and shareholder oppression. In the second chapter, the author throws aside the corporate deadlock, which is a more traditional cause of dissolution, and focuses on the shareholders' oppressive behavior. Focus on the determination of foreign shareholders' oppressive behavior and typical applicable situation, analyze the common causes of the formation of shareholder oppression in various countries, make clear the harm caused by shareholder oppressive behavior; chapter three, The author mainly analyzes the practice, theory and legal dilemma of the oppressive behavior of shareholders in our country, and the factors of the formation of these difficulties with Chinese characteristics, and expounds the necessity of constructing the judicial dissolution system under the cause of the oppressive behavior of shareholders in China from different main points of view. At the same time, in this chapter, the author expounds the theoretical basis of judicial dissolution of the oppressive behavior of shareholders. Chapter four, the author tries to design from three kinds of macro principles, entity and procedure. The design of two kinds of defense mechanism three aspects to our country shareholder oppressive behavior subject matter judicial disbandment system carries on the rational consummation. First of all, the author has designed three principles which should be grasped when exercising this system, then the author to this system protection interest and the applicable object, the judgment method and the typical application situation, the party, the jurisdiction, the judgment validity, In the end, the guarantee system and the compensation liability are used to guard against the judicial dissolution system under the circumstances of the shareholders' oppressive behavior.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2222755
[Abstract]:Judicial dissolution is one of the important types of dissolution of the company. It can intervene the company judicially. It plays an irreplaceable role in the various withdrawal mechanisms of the shareholders of the company, while protecting shareholders, creditors, other interested parties and the state. The collective interest also has the extremely important significance. As an effective way for shareholders to withdraw from a company, it plays an important role in solving the problem of closed company. Therefore, there is no doubt that the existence of judicial dissolution system can effectively solve one of the most common closed company situations-shareholder oppression, so that all shareholders, including oppressed shareholders, can not achieve the purpose of withdrawing from the company. Can effectively get rid of the shackles of the closed environment. Therefore, most foreign countries regard corporate deadlock and shareholder oppression as two major legal dissolution reasons of judicial dissolution, so as to effectively protect the interests of shareholders and stakeholders. Article 183 of the new Company Law of our country is only aimed at the judicial dissolution system under the situation of the deadlock of the company, and does not bring the oppressive behavior of shareholders into the applicable object of judicial dissolution. That is, our country has not established the judicial dissolution system under the reason of shareholders' oppressive behavior, so that the widespread practice of shareholder oppression has not been truly resolved by legislation. It makes the shareholders still have no effective exit mechanism in the existence of shareholder oppression, which has to be said to be a major legislative defect. Therefore, on the basis of comparing and drawing lessons from foreign laws, the author expounds the theoretical basis of judicial dissolution of the oppressive behavior of shareholders in China, and at the same time, in view of the intensity and thoroughness of judicial dissolution system, On the premise of setting up a series of restrictive conditions, this paper attempts to establish and perfect the judicial dissolution system under the circumstances of the oppressive behavior of shareholders in our country, to meet the practical needs, to fill in the blank of legislation, and to construct the effective withdrawal mechanism of shareholders when the oppressive behavior of shareholders exists. In the first chapter, the author first introduces the theory and value of judicial dissolution system, and describes the two main legal dissolution reasons: corporate deadlock and shareholder oppression. In the second chapter, the author throws aside the corporate deadlock, which is a more traditional cause of dissolution, and focuses on the shareholders' oppressive behavior. Focus on the determination of foreign shareholders' oppressive behavior and typical applicable situation, analyze the common causes of the formation of shareholder oppression in various countries, make clear the harm caused by shareholder oppressive behavior; chapter three, The author mainly analyzes the practice, theory and legal dilemma of the oppressive behavior of shareholders in our country, and the factors of the formation of these difficulties with Chinese characteristics, and expounds the necessity of constructing the judicial dissolution system under the cause of the oppressive behavior of shareholders in China from different main points of view. At the same time, in this chapter, the author expounds the theoretical basis of judicial dissolution of the oppressive behavior of shareholders. Chapter four, the author tries to design from three kinds of macro principles, entity and procedure. The design of two kinds of defense mechanism three aspects to our country shareholder oppressive behavior subject matter judicial disbandment system carries on the rational consummation. First of all, the author has designed three principles which should be grasped when exercising this system, then the author to this system protection interest and the applicable object, the judgment method and the typical application situation, the party, the jurisdiction, the judgment validity, In the end, the guarantee system and the compensation liability are used to guard against the judicial dissolution system under the circumstances of the shareholders' oppressive behavior.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
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相关期刊论文 前2条
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2 赵万一;吴长波;;论公司的司法解散[J];河南省政法管理干部学院学报;2005年06期
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