简析公司股东非货币出资问题
发布时间：2018-09-08 19:13
【摘要】：股东出资是公司制度中的一个核心问题。股东出资构成公司的资本。如果说资本是公司的血液,流动于公司整个运行过程之中,那么股东出资就是公司血液的源头,它的健康与否,关乎公司的命运以及债权人利益的得失。 非货币财产出资是一种与金钱出资相对的出资形态,其范围要大于无形资产出资。虽然新的《中华人民共和国公司法》对非货币财产出资做了修订,扩大了非货币出资财产的范围,但其规定仍较笼统,可操作性较弱。理论界对于有抵押权的实物、土地承包权、股权、债权能否作为股东出资也存有争议,在如何保障非货币出资安全性的问题上也意见不一。本文在梳理诸多观点的基础上,对非货币财产出资问题进行论述,提出自己的看法,以期对非货币财产出资法律制度的完善贡献一份绵薄之力。 全文一共分为四个部分: 第一部分论述股东出资的基本问题,如股东出资的概念、性质,股东出资的意义,非货币出资的概念界定,以及非货币出资的特殊意义——经济价值高、出资成本低、程序便利,有利于提高我国公司竞争力,促进经济长远发展。 第二部分探讨作为非货币出资的财产应符合哪些标准。笔者借鉴了国外学者学说,认为的“五要件说”应当成为判断非货币出资财产的标准,即确定性、价值物的现存性、评价的可能性、可转让性以及实益性,这五个条件还应当同时具备。笔者将这些要件与中国《公司法》规定的两个核心要件加以对比分析,发现我国公司法的规定虽抓住了问题关键,较为精练概括,但在具体规定上仍有所欠缺,对现存性的主体要素、确定性的登记要求以及实益性要求均无明确规定,需要进一步完善。 第三部分探讨非货币出资的主要类型。笔者结合非货币出资的财产的标准,分析了几种典型的非货币出资形式,包括实物、土地使用权、知识产权、股权与债权出资。前三者是《公司法》明确列举的出资形式,而后两种则是实践中争议较多地具有一定代表性的其他非货币出资形式。笔者认为以上形式都符合非货币出资的标准,可用于出资。 第四部分讨论了股东非货币财产出资的安全性制度设计。安全一直是公司法设计中追求的价值理念之一。如何保障非货币财产出资的安全是学界与实务界关注的焦点。笔者结合特殊的实物、土地使用权、知识产权、股权、债权出资形式各自的特点,进行了不同的安全性制度设计。 总之,非货币财产是股东出资财产的一种,它与货币出资相对应。非货币出资有利于加快资产货币化进程、合理配置社会资源、减小公司设立成本、提高我国公司竞争力。
[Abstract]:Shareholder's contribution is a core problem in the company system. The capital contribution of the shareholders constitutes the capital of the company. If capital is the blood of the company and flows through the whole operation process of the company, then the shareholder contribution is the source of the blood of the company. Its health or not is related to the fate of the company and the gain or loss of the interests of the creditors. Non-monetary property contribution is a form of capital contribution opposite to that of money, and its scope is larger than that of intangible assets. Although the new Company Law of the people's Republic of China has revised the capital contribution of non-monetary property and expanded the scope of non-monetary capital contribution, its provisions are still relatively general and the operability is relatively weak. The theorists have different opinions on how to guarantee the security of non-monetary contribution, such as the real thing with mortgage, the right of land contract, the right of equity and the creditor's right as shareholder's contribution. On the basis of combing out many viewpoints, this paper discusses the issue of non-monetary property contribution and puts forward its own views in order to contribute a little to the perfection of the legal system of non-monetary property contribution. The paper is divided into four parts: the first part discusses the basic issues of shareholder's contribution, such as the concept, nature, significance of shareholder's contribution, the definition of non-monetary contribution, The special significance of non-monetary capital contribution is high economic value, low investment cost and convenient procedure, which is helpful to improve the competitiveness of Chinese companies and promote the long-term development of economy. The second part discusses what standards should be met as non-monetary contribution of property. The author draws lessons from the theories of foreign scholars and holds that the "five elements theory" should be the criterion for judging the property of non-monetary contribution, that is, certainty, the extant nature of the value, the possibility of evaluation, the transferability and the benefit. These five conditions should also be met at the same time. By comparing these elements with the two core elements stipulated in the Company Law of China, the author finds that although the provisions of the Company Law of our country have grasped the key problems, they are more concise and summarized, but they are still lacking in the specific provisions. There is no clear stipulation about the main elements of the extant, the deterministic registration requirement and the beneficial requirement, which need to be further improved. The third part discusses the main types of non-monetary contribution. The author analyzes several typical forms of non-monetary capital contribution, including material object, land use right, intellectual property right, equity and creditor's rights. The first three are clearly listed forms of capital contribution in Company Law, while the latter two are other forms of non-monetary capital which are controversial in practice. I believe that the above forms are in line with the standard of non-monetary contribution, can be used to contribute. The fourth part discusses the security system design of shareholder non-monetary property contribution. Safety has always been one of the values in the design of company law. How to ensure the safety of non-monetary property contribution is the focus of attention of academic and practical circles. The author designs different security systems according to the characteristics of special physical objects, land use rights, intellectual property rights, equity, and creditor's rights. In a word, non-monetary property is a kind of shareholder-funded property, which corresponds to monetary contribution. Non-monetary contribution is conducive to speeding up the process of monetization of assets, rationally allocating social resources, reducing the establishment cost of companies, and improving the competitiveness of Chinese companies.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2231436
[Abstract]:Shareholder's contribution is a core problem in the company system. The capital contribution of the shareholders constitutes the capital of the company. If capital is the blood of the company and flows through the whole operation process of the company, then the shareholder contribution is the source of the blood of the company. Its health or not is related to the fate of the company and the gain or loss of the interests of the creditors. Non-monetary property contribution is a form of capital contribution opposite to that of money, and its scope is larger than that of intangible assets. Although the new Company Law of the people's Republic of China has revised the capital contribution of non-monetary property and expanded the scope of non-monetary capital contribution, its provisions are still relatively general and the operability is relatively weak. The theorists have different opinions on how to guarantee the security of non-monetary contribution, such as the real thing with mortgage, the right of land contract, the right of equity and the creditor's right as shareholder's contribution. On the basis of combing out many viewpoints, this paper discusses the issue of non-monetary property contribution and puts forward its own views in order to contribute a little to the perfection of the legal system of non-monetary property contribution. The paper is divided into four parts: the first part discusses the basic issues of shareholder's contribution, such as the concept, nature, significance of shareholder's contribution, the definition of non-monetary contribution, The special significance of non-monetary capital contribution is high economic value, low investment cost and convenient procedure, which is helpful to improve the competitiveness of Chinese companies and promote the long-term development of economy. The second part discusses what standards should be met as non-monetary contribution of property. The author draws lessons from the theories of foreign scholars and holds that the "five elements theory" should be the criterion for judging the property of non-monetary contribution, that is, certainty, the extant nature of the value, the possibility of evaluation, the transferability and the benefit. These five conditions should also be met at the same time. By comparing these elements with the two core elements stipulated in the Company Law of China, the author finds that although the provisions of the Company Law of our country have grasped the key problems, they are more concise and summarized, but they are still lacking in the specific provisions. There is no clear stipulation about the main elements of the extant, the deterministic registration requirement and the beneficial requirement, which need to be further improved. The third part discusses the main types of non-monetary contribution. The author analyzes several typical forms of non-monetary capital contribution, including material object, land use right, intellectual property right, equity and creditor's rights. The first three are clearly listed forms of capital contribution in Company Law, while the latter two are other forms of non-monetary capital which are controversial in practice. I believe that the above forms are in line with the standard of non-monetary contribution, can be used to contribute. The fourth part discusses the security system design of shareholder non-monetary property contribution. Safety has always been one of the values in the design of company law. How to ensure the safety of non-monetary property contribution is the focus of attention of academic and practical circles. The author designs different security systems according to the characteristics of special physical objects, land use rights, intellectual property rights, equity, and creditor's rights. In a word, non-monetary property is a kind of shareholder-funded property, which corresponds to monetary contribution. Non-monetary contribution is conducive to speeding up the process of monetization of assets, rationally allocating social resources, reducing the establishment cost of companies, and improving the competitiveness of Chinese companies.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
【引证文献】
相关硕士学位论文 前1条
1 龚程;股东出资填补责任研究[D];湖南大学;2012年
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