有限责任公司股权登记公信力研究
发布时间：2018-10-19 17:26
【摘要】：在我国司法实践中,有限责任公司股权确认与转让纠纷十分常见。股权权属认定问题究其本质是股权的表征方式及表征方式的公信力问题。解决问题的关键是从立法上明确股权的表征方式,肯定有限责任公司股权登记的公信力,建立并完善与股权登记公信力相关的制度支持。 本文在证成权利需要通过唯一确定的表征方式加以彰显的基础之上,推导出股权应当具有明确的权利表征方式。股权的表征方式因公司性质不同而有所不同。上市公司以证券登记结算机构的相应记载为股权的表征方式。对于非上市公司以及有限责任公司,无记名股东以股东持有的股票作为股权的表征方式；记名股东建议以股东名册之记载作为股权的表征方式。虽然上市或非上市股份公司股权、有限责任公司股权,记名股股权、无记名股股权表征方式各不相同,但是同一种类型的公司中的同一种股权的表征方式的单一化是建立股权权利秩序的最基本要求。文章在区分股权变动公示和股权表征方式的前提下,理清了股权变动的公示原则与股权登记公信力的关系,即公示原则与公信原则是并列关系,有互补作用,公信原则并非由公示原则推导而来；股权变动公示原则赋予权利变动以效力,而公信原则赋予股权表征方式以效力。股权登记公信力的正当性基础来自对合理信赖的保护。 第二部分通过对股权变动意思主义与形式主义两种效力模式的比较分析,认为有限责任公司股权变动采用意思主义模式为宜,与之相应,股权变更登记具有对抗效力。原因在于,股权登记对抗效力模式与股权的权利性质更相适应,更有利于合理配置利益与风险,且符合我国现行《公司法》的立法本意。在还原登记公信力与物权变动方式的关系的基础之上,通过类比,证成股权变动的形式主义和意思主义均可与登记公信力相融通,形式主义与登记公信力没有必然联系,意思主义与公信力也并非天然地无法共生,对登记公信力的承认最终还是一个价值考量与政策选择的问题。 第三部分深入有限责任公司股权登记公信力理论内部,以有限责任公司股权善意取得制度为核心,探讨登记公信力的信赖保护。在登记对抗主义背景下,分析股权善意取得的构成要件。股权善意取得的构成要件包括：出让人是股东名册上记载的权利人,受让人经交易行为受让股权,受让人善意且无重大过失。在理论分析的基础上,文章对《最高人民法院关于适用(中华人民共和国公司法)若干问题的规定(三)》(法释(2011)3号)中有关股权确认、股权善意取得的规定进行了检视。 第四部分立足我国的现实提出构建有限责任公司股权登记公信力的制度支持,即建立股东名册托管制度、完善股东名册记载事项、建立登记错误赔偿制度、明确股东名册备置义务人及其法律责任等。
[Abstract]:In the judicial practice of our country, the dispute of ownership confirmation and transfer of limited liability company is very common. The essence of equity ownership is the credibility of equity representation and representation. The key to solve the problem is to clarify the representation of equity in legislation, affirm the credibility of equity registration of limited liability companies, and establish and improve the system support related to the credibility of equity registration. This paper deduces that equity should have a clear representation of rights on the basis that the right of proof needs to be manifested by a unique and definite way of representation. The characterization of equity varies according to the nature of the company. The listed company shall use the corresponding records of the securities registration and settlement institution as the representation of the shares. For non-listed companies and limited liability companies, registered shareholders are represented by the shares held by shareholders, and registered shareholders suggest that the record of the register of shareholders be used as the representation of equity. Although the shares of listed or non-listed joint-stock companies, the shares of limited liability companies, registered shares, registered shares and registered shares are characterized in different ways, However, the simplification of the same ownership in the same type of company is the most basic requirement to establish the order of equity rights. On the premise of distinguishing the publicity of stock right change from the mode of equity representation, the paper clarifies the relationship between the public principle of equity change and the credibility of equity registration, that is, the principle of public announcement and the principle of public trust are parallel relations, which have complementary effect. The principle of public trust is not derived from the principle of publicity; the principle of public notice of equity changes gives effect to the change of rights, while the principle of public trust gives effect to the way of equity representation. The legitimate basis of the credibility of equity registration comes from the protection of reasonable trust. In the second part, through the comparative analysis of the two effective modes of equity change intention doctrine and formalism, the author thinks that it is appropriate for limited liability company to adopt the intention doctrine mode, and accordingly, the registration of stock right change has antagonistic effect. The reason is that the model of countervailing effect of equity registration is more suitable to the nature of the right of equity, which is more conducive to the rational allocation of interests and risks, and conforms to the original legislative intent of the current Company Law of our country. On the basis of the relationship between the public trust of restoring registration and the mode of real right change, by analogy, the formalism and will doctrine of the change of stock right can be combined with the credibility of registration, and there is no inevitable relation between formalism and public credibility of registration. The recognition of the credibility of registration is ultimately a matter of value consideration and policy choice. The third part goes deep into the theory of limited liability company's stock right registration credibility and discusses the trust protection of registration credibility with the system of bona fide acquisition of stock right of limited liability company as the core. Under the background of registration antagonism, this paper analyzes the constitutive elements of bona fide acquisition of equity rights. The constitutive requirements of bona fide acquisition of equity include: the transferor is the obligee recorded in the register of shareholders, the transferee receives the share right through the transaction act, and the transferee is bona fide and has no gross negligence. On the basis of theoretical analysis, this paper examines the provisions of the Supreme people's Court concerning the application of the Company Law of the people's Republic of China (3) > (2011) 3) concerning the confirmation and bona fide acquisition of equity rights. The fourth part, based on the reality of our country, puts forward the system support to build the credibility of stock registration of limited liability company, that is, to establish the trust system of shareholders' roster, to improve the record of shareholders' register, and to establish the system of compensation for registration errors. Make clear the reserve obligor of stockholder's register and its legal liability, etc.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2281828
[Abstract]:In the judicial practice of our country, the dispute of ownership confirmation and transfer of limited liability company is very common. The essence of equity ownership is the credibility of equity representation and representation. The key to solve the problem is to clarify the representation of equity in legislation, affirm the credibility of equity registration of limited liability companies, and establish and improve the system support related to the credibility of equity registration. This paper deduces that equity should have a clear representation of rights on the basis that the right of proof needs to be manifested by a unique and definite way of representation. The characterization of equity varies according to the nature of the company. The listed company shall use the corresponding records of the securities registration and settlement institution as the representation of the shares. For non-listed companies and limited liability companies, registered shareholders are represented by the shares held by shareholders, and registered shareholders suggest that the record of the register of shareholders be used as the representation of equity. Although the shares of listed or non-listed joint-stock companies, the shares of limited liability companies, registered shares, registered shares and registered shares are characterized in different ways, However, the simplification of the same ownership in the same type of company is the most basic requirement to establish the order of equity rights. On the premise of distinguishing the publicity of stock right change from the mode of equity representation, the paper clarifies the relationship between the public principle of equity change and the credibility of equity registration, that is, the principle of public announcement and the principle of public trust are parallel relations, which have complementary effect. The principle of public trust is not derived from the principle of publicity; the principle of public notice of equity changes gives effect to the change of rights, while the principle of public trust gives effect to the way of equity representation. The legitimate basis of the credibility of equity registration comes from the protection of reasonable trust. In the second part, through the comparative analysis of the two effective modes of equity change intention doctrine and formalism, the author thinks that it is appropriate for limited liability company to adopt the intention doctrine mode, and accordingly, the registration of stock right change has antagonistic effect. The reason is that the model of countervailing effect of equity registration is more suitable to the nature of the right of equity, which is more conducive to the rational allocation of interests and risks, and conforms to the original legislative intent of the current Company Law of our country. On the basis of the relationship between the public trust of restoring registration and the mode of real right change, by analogy, the formalism and will doctrine of the change of stock right can be combined with the credibility of registration, and there is no inevitable relation between formalism and public credibility of registration. The recognition of the credibility of registration is ultimately a matter of value consideration and policy choice. The third part goes deep into the theory of limited liability company's stock right registration credibility and discusses the trust protection of registration credibility with the system of bona fide acquisition of stock right of limited liability company as the core. Under the background of registration antagonism, this paper analyzes the constitutive elements of bona fide acquisition of equity rights. The constitutive requirements of bona fide acquisition of equity include: the transferor is the obligee recorded in the register of shareholders, the transferee receives the share right through the transaction act, and the transferee is bona fide and has no gross negligence. On the basis of theoretical analysis, this paper examines the provisions of the Supreme people's Court concerning the application of the Company Law of the people's Republic of China (3) > (2011) 3) concerning the confirmation and bona fide acquisition of equity rights. The fourth part, based on the reality of our country, puts forward the system support to build the credibility of stock registration of limited liability company, that is, to establish the trust system of shareholders' roster, to improve the record of shareholders' register, and to establish the system of compensation for registration errors. Make clear the reserve obligor of stockholder's register and its legal liability, etc.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
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2 傅曦林;;股东名册受托管理人制度初探[J];学术论坛;2009年01期
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