瑕疵股权法律问题研究
发布时间：2018-10-30 14:23
【摘要】：近年来,随着市场经济的发展,股权纠纷的日益增多,学者对于瑕疵股权的讨论也应势而生,瑕疵股权问题成为了理论界和实务中颇受关注的问题。股权存在瑕疵不仅会影响股东在公司各项权利的行使,而且将会对公司、其他足额出资的股东甚至公司债权人的利益产生不利的影响。此前,我国《公司法》及其一系列司法解释对瑕疵股权尚无明确规定,于2010年12月16日开始实施的《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)》(下称“《公司法》司法解释(三))中首次出现了“股权有权利瑕疵”的表述,并对出资导致的瑕疵股权作了较多规定,但是仍有待完善。 公司法理论研究上有关瑕疵股权这一概念的定义、外延、瑕疵股权所受的限制及其补救等各种相关问题亦并未有完整的论述。在现有的理论研究中,为数不少的文章将“瑕疵股权”与“出资瑕疵的股权”相提并论,不分彼此,从而,在许多人的眼里,“瑕疵股权”等同于“出资有瑕疵的股权”,而对于出资的瑕疵是否一定导致“股权的瑕疵”,是否还有其他类型的瑕疵股权等问题都不再深究。此前较受认可的瑕疵股权定义为“因出资者在履行出资义务、股权记载、登记程序等环节存在违法、违规或者违约等瑕疵因素导致权利本身存在缺陷的股权”。但笔者认为瑕疵股权之定义重点在于“权利本身存在缺陷的股权”,从而对于瑕疵股权的定义不应将产生瑕疵的原因进行列举,因为列举一旦未尽即是不周延。 笔者认为将瑕疵股权定义为“权利本身存在缺陷的股权”即可,对于瑕疵股权的研究也应着眼于股权权能本身是否存在缺陷,权利行使是否受到限制,股权是否能发挥其原有功效而对其进行研究,从而得出了出资瑕疵虽是导致瑕疵股权的最大原因,但是出资瑕疵与瑕疵股权之间也并非必然的逻辑关系,出资瑕疵并不必然导致股权瑕疵的结论。此外,工商登记错误虽然是一种看似会导致股权瑕疵的行为,但是实际上工商登记并不会使股权本身存在缺陷,因此,工商登记错误并非瑕疵股权产生的原因之一。 鉴于《公司法》司法解释(三)、以及尚处于征求意见阶段的《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(四)》已对出资类瑕疵股权的权能限制以及股权转让等做了相应规定,但是这些规定尚存在不完备之处,在实践中的操作将会碰到许多问题。本文将结合实际及相关法律及司法解释的规定,立足于实务需要,对现实中存在的瑕疵股权的外延、权能、救济与弥补等相关问题进行系统的分析,希望能为司法实务及司法解释提供可资利用的参考。
[Abstract]:In recent years, with the development of the market economy and the increasing number of stock rights disputes, scholars should also discuss the defective equity, which has become a problem of great concern in theory and practice. The defects of stock rights will not only affect the exercise of shareholders' rights in the company, but also adversely affect the interests of the company, other fully funded shareholders and even the creditors of the company. Prior to this, China's Company Law and its series of judicial interpretations did not clearly provide for defective equity rights. The provisions of the Supreme people's Court on the Application of the Company Law of the people's Republic of China (3) > (hereinafter referred to as "Judicial interpretation of the Company Law (3)" came into force on December 16, 2010 for the first time. " The statement that the equity has a defect of rights, And contributed to the defective equity rights made more provisions, but still need to be improved. The definition, extension, limitation and remedy of defective equity are not fully discussed in the theoretical study of company law. In the existing theoretical studies, quite a number of articles equate "defective equity" with "defective equity in capital contribution", thus, in the eyes of many people, "defective equity" is equivalent to "defective equity". However, whether the defect of capital contribution must lead to the defect of equity, and whether there are other types of defective equity are no longer studied. Prior to the more recognized defective equity is defined as "the investor in the performance of investment obligations, equity records, registration procedures and other aspects of illegal, illegal or breach of contract and other defects resulting in the right itself defective equity." However, the author believes that the definition of defective equity is focused on "the right itself is defective equity", so the definition of defective equity should not enumerate the causes of defects, because the enumeration is incomplete once it is not exhaustive. The author thinks that the defective equity is defined as "the right itself is defective", and the research on the defective equity should also focus on whether the equity power itself is defective, whether the exercise of the right is restricted or not. Whether the stock right can exert its original effect and study it, so it is concluded that the defect of capital contribution is the biggest reason leading to the defective equity, but the logical relationship between the defect of capital contribution and the defective stock right is not inevitable. Investment defects do not necessarily lead to the conclusion that equity defects. In addition, although the error of business registration is a kind of behavior which seems to lead to the defect of stock right, in fact, it does not cause the defect of stock right itself. Therefore, the error of business registration is not one of the causes of defective stock right. In view of the judicial interpretation of the Company Law (III), And the provisions (4) of the Supreme people's Court on the Application of the Company Law of the people's Republic of China, which are still in the stage of soliciting opinions, have made corresponding provisions on the limitation of the power and transfer of shares of defective shares in the category of capital contribution. However, these regulations are still incomplete and will encounter many problems in practice. This article will combine the actual and the related law and the judicial explanation stipulation, bases on the practical need, carries on the systematic analysis to the real existence flaw stock right extension, the power, the relief and the remedy and so on related question. Hope to provide reference for judicial practice and judicial interpretation.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2300252
[Abstract]:In recent years, with the development of the market economy and the increasing number of stock rights disputes, scholars should also discuss the defective equity, which has become a problem of great concern in theory and practice. The defects of stock rights will not only affect the exercise of shareholders' rights in the company, but also adversely affect the interests of the company, other fully funded shareholders and even the creditors of the company. Prior to this, China's Company Law and its series of judicial interpretations did not clearly provide for defective equity rights. The provisions of the Supreme people's Court on the Application of the Company Law of the people's Republic of China (3) > (hereinafter referred to as "Judicial interpretation of the Company Law (3)" came into force on December 16, 2010 for the first time. " The statement that the equity has a defect of rights, And contributed to the defective equity rights made more provisions, but still need to be improved. The definition, extension, limitation and remedy of defective equity are not fully discussed in the theoretical study of company law. In the existing theoretical studies, quite a number of articles equate "defective equity" with "defective equity in capital contribution", thus, in the eyes of many people, "defective equity" is equivalent to "defective equity". However, whether the defect of capital contribution must lead to the defect of equity, and whether there are other types of defective equity are no longer studied. Prior to the more recognized defective equity is defined as "the investor in the performance of investment obligations, equity records, registration procedures and other aspects of illegal, illegal or breach of contract and other defects resulting in the right itself defective equity." However, the author believes that the definition of defective equity is focused on "the right itself is defective equity", so the definition of defective equity should not enumerate the causes of defects, because the enumeration is incomplete once it is not exhaustive. The author thinks that the defective equity is defined as "the right itself is defective", and the research on the defective equity should also focus on whether the equity power itself is defective, whether the exercise of the right is restricted or not. Whether the stock right can exert its original effect and study it, so it is concluded that the defect of capital contribution is the biggest reason leading to the defective equity, but the logical relationship between the defect of capital contribution and the defective stock right is not inevitable. Investment defects do not necessarily lead to the conclusion that equity defects. In addition, although the error of business registration is a kind of behavior which seems to lead to the defect of stock right, in fact, it does not cause the defect of stock right itself. Therefore, the error of business registration is not one of the causes of defective stock right. In view of the judicial interpretation of the Company Law (III), And the provisions (4) of the Supreme people's Court on the Application of the Company Law of the people's Republic of China, which are still in the stage of soliciting opinions, have made corresponding provisions on the limitation of the power and transfer of shares of defective shares in the category of capital contribution. However, these regulations are still incomplete and will encounter many problems in practice. This article will combine the actual and the related law and the judicial explanation stipulation, bases on the practical need, carries on the systematic analysis to the real existence flaw stock right extension, the power, the relief and the remedy and so on related question. Hope to provide reference for judicial practice and judicial interpretation.
【学位授予单位】：中国政法大学
【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2条
1 范诗恒;股东瑕疵出资的权利限制问题研究[D];华东政法大学;2012年
2 王冬梅;论发起人的资本充实责任[D];西南政法大学;2012年
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