公司设立登记瑕疵司法撤销制度研究
发布时间：2018-10-12 10:29
【摘要】：在现代公司法中，公司设立制度占有很重要的地位，公司的设立登记是公司设立的一项很重要的事项。在公司设立登记的过程中，有可能会发生公司瑕疵设立问题。公司瑕疵设立会影响到公司的人格，进而影响到公司发起人或股东、债权人及其他利害关系人的权益。迅速有效地解决公司瑕疵设立问题，对受到公司瑕疵设立损害的相关人员予以公平合理的救济，在公司组织的维持和相关主体利益的维护之间取得平衡，成为摆在我们面前的突出问题。公司设立登记撤销是针对公司瑕疵设立的一种救济措施，主要有行政处理模式与司法处理模式，目前世界两大法系的大多数国家均选择了司法救济模式。英美法系和大陆法系对公司设立登记瑕疵采用了不同的法律调整机制，英国取瑕疵设立原则承认主义，美国为瑕疵设立区别否认主义，德国为瑕疵设立无效否认主义，日本、韩国则选择瑕疵设立区别否认主义，我国台湾地区则采瑕疵设立撤销主义。我国大陆单一的公司瑕疵设立行政撤销制度存在明显缺陷，登记机关处于主导地位，不能很好地保护私人利益。我国《公司法》应当建立公司设立登记瑕疵司法撤销制度，尊重契约自由和私人意志，弱化公司登记机关的作用和国家意志，减少国家对私人活动的干预。企业维持是现代企业制度的基本要求，，大多数国家立法贯彻了这一基本原则。我国《公司法》可以借鉴域外法律并建立公司瑕疵矫正制度，赋予瑕疵设立公司自我矫正的机会，维持公司使公司继续有效存在。相关主体利益遭受损失应得到有效地救济，行为主体应承担民事责任，公司设立登记瑕疵的民事责任在于保护因公司设立登记瑕疵受到损害的当事人的利益。公司设立登记瑕疵司法撤销会消灭公司，公司的登记行为自始无效，公司的经营行为应视为设立申请人的合伙行为，设立申请人依法对公司的债务承担无限连带责任。第三人与公司之间的法律关系仍然有效，其因公司瑕疵设立受到的损失，在不同情况下第三人可以要求不同的主体赔偿。公司登记机关对登记申请人和第三人承担的民事责任属于国家赔偿责任，其责任方式以赔偿为主，适用限制赔偿原则来确定赔偿范围。
[Abstract]:In the modern company law, the company establishment system occupies a very important position, the company establishment registration is a very important matter of the company establishment. In the process of company establishment registration, there may be defects in the establishment of the company. The defective establishment of the company will affect the personality of the company, and then affect the rights and interests of the promoters or shareholders, creditors and other interested parties. To solve the problem of company defect establishment quickly and effectively, to give fair and reasonable relief to the related personnel who have been damaged by the company defect establishment, and to strike a balance between the maintenance of the company's organization and the maintenance of the interests of the relevant subject. Become a prominent problem in front of us. The cancellation of company establishment registration is a relief measure for the establishment of a company's defects. There are mainly administrative and judicial treatment modes. At present, most countries in the two major legal systems of the world have chosen the judicial remedy mode. Anglo-American law system and civil law system have adopted different legal adjustment mechanism to the company establishment registration flaw, the England takes the flaw establishment principle recognition doctrine, the United States sets up the distinction denial doctrine for the flaw, Germany establishes the invalid denial doctrine for the flaw, Japan, Japan. South Korea chooses defect to establish discriminative denial, and Taiwan adopts defect to set up revocalism. There are obvious defects in the system of administrative revocation of a single company defect in mainland China, and the registration authority is in the dominant position and can not protect private interests very well. The Company Law of our country should establish the judicial revocation system of company registration defects, respect the freedom of contract and private will, weaken the role of the company registration authority and the national will, and reduce the state interference in private activities. Enterprise maintenance is the basic requirement of modern enterprise system. The Company Law of our country can draw lessons from the extraterritorial law and establish the system of correcting the defects of the company, give the opportunity of self-correction to the company of the defective establishment, and maintain the company to make the company continue to exist effectively. The loss of the interests of the relevant subjects should be effectively remedied, the main body of conduct should bear civil liability, and the civil liability of the company's establishment of registration defects lies in the protection of the interests of the parties who have been damaged by the defects of the company's establishment of registration. The judicial revocation of the company's registration defects will destroy the company, and the company's registration behavior is invalid from the beginning. The company's business behavior should be regarded as the establishment of the applicant's partnership act, and the applicant shall bear unlimited joint and several liability for the company's debts according to law. The legal relationship between the third party and the company is still valid, and the third party can claim different compensation under different circumstances because of the loss caused by the defective establishment of the company. The civil liability of the company registration authority to the registration applicant and the third party belongs to the state compensation liability. The main way of its liability is compensation, and the scope of compensation is determined by applying the principle of limiting compensation.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.291.91
本文编号：2265783
[Abstract]:In the modern company law, the company establishment system occupies a very important position, the company establishment registration is a very important matter of the company establishment. In the process of company establishment registration, there may be defects in the establishment of the company. The defective establishment of the company will affect the personality of the company, and then affect the rights and interests of the promoters or shareholders, creditors and other interested parties. To solve the problem of company defect establishment quickly and effectively, to give fair and reasonable relief to the related personnel who have been damaged by the company defect establishment, and to strike a balance between the maintenance of the company's organization and the maintenance of the interests of the relevant subject. Become a prominent problem in front of us. The cancellation of company establishment registration is a relief measure for the establishment of a company's defects. There are mainly administrative and judicial treatment modes. At present, most countries in the two major legal systems of the world have chosen the judicial remedy mode. Anglo-American law system and civil law system have adopted different legal adjustment mechanism to the company establishment registration flaw, the England takes the flaw establishment principle recognition doctrine, the United States sets up the distinction denial doctrine for the flaw, Germany establishes the invalid denial doctrine for the flaw, Japan, Japan. South Korea chooses defect to establish discriminative denial, and Taiwan adopts defect to set up revocalism. There are obvious defects in the system of administrative revocation of a single company defect in mainland China, and the registration authority is in the dominant position and can not protect private interests very well. The Company Law of our country should establish the judicial revocation system of company registration defects, respect the freedom of contract and private will, weaken the role of the company registration authority and the national will, and reduce the state interference in private activities. Enterprise maintenance is the basic requirement of modern enterprise system. The Company Law of our country can draw lessons from the extraterritorial law and establish the system of correcting the defects of the company, give the opportunity of self-correction to the company of the defective establishment, and maintain the company to make the company continue to exist effectively. The loss of the interests of the relevant subjects should be effectively remedied, the main body of conduct should bear civil liability, and the civil liability of the company's establishment of registration defects lies in the protection of the interests of the parties who have been damaged by the defects of the company's establishment of registration. The judicial revocation of the company's registration defects will destroy the company, and the company's registration behavior is invalid from the beginning. The company's business behavior should be regarded as the establishment of the applicant's partnership act, and the applicant shall bear unlimited joint and several liability for the company's debts according to law. The legal relationship between the third party and the company is still valid, and the third party can claim different compensation under different circumstances because of the loss caused by the defective establishment of the company. The civil liability of the company registration authority to the registration applicant and the third party belongs to the state compensation liability. The main way of its liability is compensation, and the scope of compensation is determined by applying the principle of limiting compensation.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.291.91
【引证文献】
相关博士学位论文 前1条
1 赖武;公司僵局论[D];吉林大学;2009年
本文编号：2265783
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