我国债权出资的法律规制
发布时间：2018-10-23 13:44
【摘要】：在市场经济迅猛发展的时代,债权的优越性日渐凸显,已经成为现代社会财富的重要表现形式。随着股东出资形式的多样化,债权地位的不断提升,价值的不断凸显,允许债权出资,使公司与债权结合必然会为公司以及社会经济的发展带来新的活力,注入新的血液；当然也存在不利的一面,债权本身的缺陷必然也会带来一些风险,这也是多年来学者们对债权出资持否定态度的重要原因。因此如何扬长避短,在充分发挥债权优越性的同时又能维护好交易安全和社会经济秩序就成为了时下人们关注的热点问题。从我国实践来看,债权出资现象越来越普遍,我国原有的公司法已经不能充分的承担起经济发展的使命,理论界对于债权出资的研究又不过深入,因此本文将围绕债权这一社会财富才提,系统探讨债权出资问题,提出自己的见解和对于规制问题的构思。 本文中,笔者将从以下四部分来阐述自己对于债权出资问题的理解以及提出自己对立法规制的一些建议： 本文第一部分是对债权出资的概述。主要分析与债权出资有关的概念和原理。先通过比较债权与物权明确了债权的性质,从而分析到债权在现代社会生活中的重要性,进而明确债权作为投资工具已经成为一种趋势。其次,阐述了对于债权出资概念的不同观点。最后讲述了债权出资的理论基础。对公司资本和资产做了区分,尤其分析了公司应该奉承的不再是“资本信用”,而是“资产信用”。 第二部分是对债权出资的理论分析。首先结合我国经济现状归纳了债权出资的适格性要件,笔者从确定性、价值物的现存性、评价的可能性、独立转让的可能性四方面明确了债权是符合公司法所规定的“可以用货币估价并可以依法转让的非货币财产”的,符合上述条件的债权可以用于出资。然后,分析了对公司债权出资和对第三人债权出资两种出资类型的可行性。最后阐述了债权出资的局限性,这是需要防范和规制来约束的。 第三部分主要考察域外各国对债权出资的立法实践。笔者从英美法系和大陆法系分别探讨了英、美、德、法、日国家对债权出资的态度和规制情况,得出结论：债权出资已经是现代公司法发展不可逆转的一大趋势,因此要放宽对股东出资方式的限制,允许代表社会财富的债权进行出资。 第四部分是本文重点,主要对我国债权出资的现状进行了分析并阐述了对完善我国债权出资制度的立法设想。首先介绍了对债权出资进行立法规制的必要性,最后笔者重点探讨了债权出资中的审查制度、评估制度及债权出资担保制度和比例问题的立法设想。
[Abstract]:In the era of rapid development of market economy, the superiority of creditor's rights has become an important form of modern social wealth. With the diversification of the forms of shareholders' contribution, the status of creditor's rights, the value of the constantly prominent, allowing the creditor's rights to contribute, so that the combination of the company and the creditor's rights will inevitably bring new vitality to the development of the company and social economy, inject new blood; Of course, there are disadvantages, the defects of creditor's rights itself will inevitably bring some risks, which is the important reason that scholars have negative attitude towards creditor's rights for many years. Therefore, how to make the best use of advantages and avoid weaknesses, to give full play to the superiority of creditor's rights and to maintain the transaction security and social economic order, has become a hot issue that people pay attention to nowadays. From the point of view of our country's practice, the phenomenon of creditor's rights contribution is becoming more and more common, the original company law of our country can no longer fully undertake the mission of economic development. Therefore, this paper will focus on the creditor's rights as a social wealth, systematically discuss the problem of creditor's rights, put forward their own views and the idea of regulation. In this paper, the author from the following four parts to explain their understanding of the issue of creditor's rights to contribute and put forward their own legislative regulation of some suggestions: the first part of this article is a summary of the contribution of creditor's rights. It mainly analyzes the concepts and principles related to the contribution of creditor's rights. By comparing the creditor's rights with the real right, the author clarifies the nature of the creditor's rights, and then analyzes the importance of the creditor's rights in the modern social life, and then clarifies that the creditor's rights as an investment tool has become a trend. Secondly, it expounds the different views on the concept of creditor's rights contribution. Finally, the theoretical basis of creditor's rights contribution is described. This paper makes a distinction between capital and assets, especially analyzes that what the company should flatter is not "capital credit", but "asset credit". The second part is the theoretical analysis of the contribution of creditor's rights. First of all, combined with the current economic situation of our country, the author sums up the eligibility elements of creditor's rights contribution, the author from the certainty, the value of the extant, the possibility of evaluation, The possibility of independent transfer makes it clear that the creditor's rights conform to the "non-monetary property which can be evaluated by money and transferred according to law", and the creditor's rights which meet the above conditions can be used as capital contribution. Then, the paper analyzes the feasibility of the two types of capital contribution: the creditor's rights of the company and the third party. At last, the limitation of creditor's rights contribution is expounded, which needs to be prevented and regulated. The third part mainly studies the legislative practice of foreign countries. From the Anglo-American law system and the continental law system, the author discusses the attitudes and regulations of the countries of Britain, America, Germany, France and Japan on the capital contribution of creditor's rights, and concludes that the capital contribution of creditor's rights has become an irreversible trend in the development of modern company law. Therefore, it is necessary to relax the restriction on the way of shareholders' contribution and allow the creditor's rights representing social wealth to contribute. The fourth part is the focal point of this paper, mainly analyzes the present situation of our country's creditor's rights contribution and expounds the legislative assumption of perfecting our country's creditor's rights contribution system. This paper first introduces the necessity of legislative regulation of creditor's rights contribution, and finally, the author focuses on the legislative assumption of the examination system, evaluation system and guarantee system and proportion of creditor's rights.
【学位授予单位】：河北经贸大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2289431
[Abstract]:In the era of rapid development of market economy, the superiority of creditor's rights has become an important form of modern social wealth. With the diversification of the forms of shareholders' contribution, the status of creditor's rights, the value of the constantly prominent, allowing the creditor's rights to contribute, so that the combination of the company and the creditor's rights will inevitably bring new vitality to the development of the company and social economy, inject new blood; Of course, there are disadvantages, the defects of creditor's rights itself will inevitably bring some risks, which is the important reason that scholars have negative attitude towards creditor's rights for many years. Therefore, how to make the best use of advantages and avoid weaknesses, to give full play to the superiority of creditor's rights and to maintain the transaction security and social economic order, has become a hot issue that people pay attention to nowadays. From the point of view of our country's practice, the phenomenon of creditor's rights contribution is becoming more and more common, the original company law of our country can no longer fully undertake the mission of economic development. Therefore, this paper will focus on the creditor's rights as a social wealth, systematically discuss the problem of creditor's rights, put forward their own views and the idea of regulation. In this paper, the author from the following four parts to explain their understanding of the issue of creditor's rights to contribute and put forward their own legislative regulation of some suggestions: the first part of this article is a summary of the contribution of creditor's rights. It mainly analyzes the concepts and principles related to the contribution of creditor's rights. By comparing the creditor's rights with the real right, the author clarifies the nature of the creditor's rights, and then analyzes the importance of the creditor's rights in the modern social life, and then clarifies that the creditor's rights as an investment tool has become a trend. Secondly, it expounds the different views on the concept of creditor's rights contribution. Finally, the theoretical basis of creditor's rights contribution is described. This paper makes a distinction between capital and assets, especially analyzes that what the company should flatter is not "capital credit", but "asset credit". The second part is the theoretical analysis of the contribution of creditor's rights. First of all, combined with the current economic situation of our country, the author sums up the eligibility elements of creditor's rights contribution, the author from the certainty, the value of the extant, the possibility of evaluation, The possibility of independent transfer makes it clear that the creditor's rights conform to the "non-monetary property which can be evaluated by money and transferred according to law", and the creditor's rights which meet the above conditions can be used as capital contribution. Then, the paper analyzes the feasibility of the two types of capital contribution: the creditor's rights of the company and the third party. At last, the limitation of creditor's rights contribution is expounded, which needs to be prevented and regulated. The third part mainly studies the legislative practice of foreign countries. From the Anglo-American law system and the continental law system, the author discusses the attitudes and regulations of the countries of Britain, America, Germany, France and Japan on the capital contribution of creditor's rights, and concludes that the capital contribution of creditor's rights has become an irreversible trend in the development of modern company law. Therefore, it is necessary to relax the restriction on the way of shareholders' contribution and allow the creditor's rights representing social wealth to contribute. The fourth part is the focal point of this paper, mainly analyzes the present situation of our country's creditor's rights contribution and expounds the legislative assumption of perfecting our country's creditor's rights contribution system. This paper first introduces the necessity of legislative regulation of creditor's rights contribution, and finally, the author focuses on the legislative assumption of the examination system, evaluation system and guarantee system and proportion of creditor's rights.
【学位授予单位】：河北经贸大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
【参考文献】
相关期刊论文 前5条
1 陈茂国,刘雁兵;股东出资标的问题研究[J];湖北省社会主义学院学报;2002年02期
2 赵旭东;从资本信用到资产信用[J];法学研究;2003年05期
3 容缨;;浅析债权出资的法理基础[J];政法学刊;2007年04期
4 冯果;股东现物出资若干问题研究[J];中国法学;1999年06期
5 江平;现代企业的核心是资本企业[J];中国法学;1997年06期
相关硕士学位论文 前2条
1 廖敏倩;公司法上的债权出资问题探讨[D];华东政法大学;2007年
2 张征宇;债权出资法律问题研究[D];上海交通大学;2010年
，本文编号：2289431
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