异议股东股份回购请求权行使疑难问题研究
发布时间：2018-09-09 11:13
【摘要】：异议股东股份回购请求权制度作为“资本多数决”表决机制下对公司中处于弱势地位的中小股东的重要救济措施由来已久,在经济全球化水平迅速提高、重大经济活动日益频繁的当今社会,该项制度在世界上多个国家和地区得到了更为广泛的运用。在部分国家和地区,异议股东股份回购请求权的相关立法已经发展得较为完备,在实践中为对公司重大经营决策持有异议的股东提供了有效的退出路径和经济补偿。而我国自2005年《公司法》首次确立了异议股东股份回购请求权制度以来,相关立法一直处于近乎停滞的状态,异议股东股份回购请求权的行使仅有《公司法》第75条和第143条的简单规定作为指导和依据。 本文通过大量分析我国异议股东股份回购请求权实践中的真实案例,针对性地总结出异议股东股份回购请求权在我国行使过程中存在的疑难问题及其成因。为了解决这些问题,本文进行了详细的比较法分析,通过对比和借鉴其他国家和地区的相关先进立法,对我国的异议股东股份回购请求权立法和司法实践提出了完善的建议,从而解决了相应的权利行使疑难问题。 本文共分为三个部分： 第一部分从我国异议股东股份回购请求权实践中的真实案例入手,通过分析具体案件中存在的疑难与争议,总结出异议股东股份回购请求权在我国正遭遇着不完全股权股东的主体地位不明、权利适用事项涵盖范围不足、权利行使程序粗陋、缺乏明确的股份回购价格确定机制以及与债权人利益保护产生冲突等重要问题。 第二部分为了解决上述问题,以异议股东股份回购请求权据以产生的法律及经济学理论为基础,深入研究美国、加拿大、日本、韩国等国家和地区的相关立法,以异议股东股份回购请求权的行使主体、适用范围、行使程序以及股份回购价格的评估机制为视点,选取并吸收其中适合我国现阶段实际情况的立法经验。 第三部分在大量我国实际案例以及比较法分析的基础之上,对我国的异议股东股份回购请求权制度提出了明确权利适用主体、扩大权利适用范围、完善权利行使程序、确定股份回购价格计算方法以及加强债权人利益保护的立法建议,以期解决我国异议股东股份回购请求权行使中存在的疑难问题。同时还对现阶段我国的相关司法实践提出了改进的方式,以促使该项制度更加有效地发挥对中小股东的利益保护作用,提高公司经营决策的效率,并最终对我国经济的持续繁荣发展贡献力量。
[Abstract]:As an important relief measure to the minority shareholders in the weak position of the company under the voting mechanism of "capital majority decision", the system of claim for share repurchase of dissenting shareholders has a long history, and has rapidly improved in the level of economic globalization. With the increasing frequency of major economic activities, this system has been widely used in many countries and regions in the world. In some countries and regions, the relevant legislation on the right of share repurchase of dissenting shareholders has been developed relatively well. In practice, it provides effective exit path and economic compensation for shareholders who disagree with the major business decisions of the company. However, since 2005, when the Company Law established the system of claim for share repurchase of dissenting shareholders for the first time, the relevant legislation has been in a state of near stagnation. The exercise of dissenting shareholders' right to repurchase shares is guided and based on the simple provisions of articles 75 and 143 of the Company Law. By analyzing a large number of real cases in the practice of the right of share repurchase of dissenting shareholders in China, this paper sums up the difficult problems and their causes in the exercise of the right of repurchase of shares of dissenting shareholders in our country. In order to solve these problems, this paper has carried on the detailed comparative law analysis, through contrasts and draws lessons from other countries and regions related advanced legislation, has put forward the consummate suggestion to our country's dissent shareholder's share repurchase right legislation and the judicial practice. Thus solved the corresponding rights exercise difficult problem. This paper is divided into three parts: the first part begins with the real cases in the practice of the right of the dissenting shareholders to repurchase shares, through the analysis of the problems and disputes existing in the specific cases. It is concluded that the claim for share repurchase of dissenting shareholders in China is encountering the unclear status of the main body of the incomplete stockholders, the lack of coverage of the applicable items of rights, and the crude procedures for the exercise of rights. Lack of a clear mechanism to determine the share repurchase price and conflicts with the protection of creditors' interests and other important issues. In the second part, in order to solve the above problems, based on the legal and economic theories on which the dissenting shareholders' claim for share repurchase is based, the relevant legislation of the United States, Canada, Japan, South Korea and other countries and regions are studied in depth. From the point of view of the main body, the scope of application, the exercise procedure and the evaluation mechanism of the share repurchase price of the dissenting shareholders, the author selects and absorbs the legislative experience suitable for the actual situation of our country at the present stage. In the third part, on the basis of a large number of actual cases and comparative law analysis, the author puts forward a clear subject of right application, expands the scope of application of rights, and consummates the procedure of exercise of rights in our country's system of dissenting shareholders' right to repurchase shares. To determine the calculation method of share repurchase price and to strengthen the protection of creditors' interests in order to solve the difficult problems existing in the exercise of the right of dissenting shareholders to repurchase shares in our country. At the same time, it also puts forward the way to improve the relevant judicial practice of our country at the present stage, in order to urge this system to play the role of protecting the interests of the minority shareholders more effectively, and to improve the efficiency of the company's management decision. And ultimately contribute to the sustained prosperity and development of our economy.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.291.91
本文编号：2232212
[Abstract]:As an important relief measure to the minority shareholders in the weak position of the company under the voting mechanism of "capital majority decision", the system of claim for share repurchase of dissenting shareholders has a long history, and has rapidly improved in the level of economic globalization. With the increasing frequency of major economic activities, this system has been widely used in many countries and regions in the world. In some countries and regions, the relevant legislation on the right of share repurchase of dissenting shareholders has been developed relatively well. In practice, it provides effective exit path and economic compensation for shareholders who disagree with the major business decisions of the company. However, since 2005, when the Company Law established the system of claim for share repurchase of dissenting shareholders for the first time, the relevant legislation has been in a state of near stagnation. The exercise of dissenting shareholders' right to repurchase shares is guided and based on the simple provisions of articles 75 and 143 of the Company Law. By analyzing a large number of real cases in the practice of the right of share repurchase of dissenting shareholders in China, this paper sums up the difficult problems and their causes in the exercise of the right of repurchase of shares of dissenting shareholders in our country. In order to solve these problems, this paper has carried on the detailed comparative law analysis, through contrasts and draws lessons from other countries and regions related advanced legislation, has put forward the consummate suggestion to our country's dissent shareholder's share repurchase right legislation and the judicial practice. Thus solved the corresponding rights exercise difficult problem. This paper is divided into three parts: the first part begins with the real cases in the practice of the right of the dissenting shareholders to repurchase shares, through the analysis of the problems and disputes existing in the specific cases. It is concluded that the claim for share repurchase of dissenting shareholders in China is encountering the unclear status of the main body of the incomplete stockholders, the lack of coverage of the applicable items of rights, and the crude procedures for the exercise of rights. Lack of a clear mechanism to determine the share repurchase price and conflicts with the protection of creditors' interests and other important issues. In the second part, in order to solve the above problems, based on the legal and economic theories on which the dissenting shareholders' claim for share repurchase is based, the relevant legislation of the United States, Canada, Japan, South Korea and other countries and regions are studied in depth. From the point of view of the main body, the scope of application, the exercise procedure and the evaluation mechanism of the share repurchase price of the dissenting shareholders, the author selects and absorbs the legislative experience suitable for the actual situation of our country at the present stage. In the third part, on the basis of a large number of actual cases and comparative law analysis, the author puts forward a clear subject of right application, expands the scope of application of rights, and consummates the procedure of exercise of rights in our country's system of dissenting shareholders' right to repurchase shares. To determine the calculation method of share repurchase price and to strengthen the protection of creditors' interests in order to solve the difficult problems existing in the exercise of the right of dissenting shareholders to repurchase shares in our country. At the same time, it also puts forward the way to improve the relevant judicial practice of our country at the present stage, in order to urge this system to play the role of protecting the interests of the minority shareholders more effectively, and to improve the efficiency of the company's management decision. And ultimately contribute to the sustained prosperity and development of our economy.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.291.91
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