股东出资瑕疵的法律探讨
发布时间：2018-11-02 21:11
【摘要】：公司法中对于出资制度进行了严格的规制,其目在于确保公司资本的充实,对外具有良好的偿债能力,从而能够更好地保护债权人的利益。然而现实生活中,股东违反法律或者公司章程的规定,拒绝出资、不能出资、虚假出资、抽逃出资、延迟出资和出资不实等行为屡禁不止。出资瑕疵的行为不仅损害公司、债权人以及其他股东的合法权益,且容易造成市场经济的紊乱。本文通过五个方面对股东出资瑕疵及其表现形态、出资瑕疵的理论探析、股东出资瑕疵的法律价值判断、出资瑕疵股权的转让、以及出资瑕疵相关主体的法律责任等问题进行了讨论。 第一部分讨论了股东出资瑕疵的内涵。首先,界定了股东出资瑕疵的概念,即出资瑕疵指在法律对股东出资设定明确规则的情况下,若股东出资未吻合这些规则,股东用以出资的财产或财产权利本身存在瑕疵,或其他出资行为有瑕疵。包括对出资义务的实质性违反和非实质性违反。其次,列明了股东出资瑕疵的特点,包括对出资义务的违法、资本不符合法律或者章程的规定、部分出资瑕疵可以弥补三部分。再次,从违法出资行为发生的时间、出资瑕疵的程度、出资客体三个方面对股东从出资瑕疵行为进行了分类。最后从资产控制的监管问题、最低资本额的强制性规定缺乏实际意义、出资形式单一化、缺乏严格的实物出资登记制度四个角度探讨了股东出资瑕疵的内在原因。 第二部分就股东出资瑕疵的理论根源进行了探讨。股东出资与资本之间的法律联系是重点。股东按照公司章程的规定将资金划入公司的账户,这一行为一旦完成,股东即不能随意主张对这些资金的所有权。且就法定资本制、授权资本制和折中资本制进行了理论和实践上的比较研究。本文试图从比较法学的角度分析国外有关国家法律对股东出资形式的规定,从而对中国公司法需要改进的地方提出建议。其次,就我国法律从秉持资本三原则的角度对股东出资的规制进行了简要的介绍。最后,就2005年《公司法》降低了最低注册资本额,允许分期缴纳且丰富了非现金出资的形式等改变得出中国的立法者已经逐步摒弃严厉的出资制度改为赋予投资者相对自由选择规则的结论。 第三部分分析了法律对股东出资瑕疵行为的价值层面的判断。首先,笔者对出资瑕疵股东资格进行了法律层面的判断。是否同时具备实质要件和形式要件两个方面决定了投资者能否取得公司股东的资格。出资瑕疵人虽然违反了出资义务,在我国法律没有明确的规定这种情况下,出资人仍具有股东资格。其次,对出资瑕疵的股东的股东权利进行了界定。包括股东按照实际交纳的资本分红、股东按照实缴的出资行使表决权以及出资瑕疵的股东行使股东优先权比例相应减少三部分。最后,探讨了股东出资瑕疵行为对公司效力的影响。对于存在一般瑕疵的公司,法律对其的要求是“责令改正”,而对于存在严重瑕疵的公司,则要求否定其公司人格。 第四部分对出资瑕疵股权的转让问题进行了分析。首先,从理论层面、立法层面以及比较法的角度认可了出资瑕疵股权有限制的可转让性。其次,对出资瑕疵股权转让的法律规制进行了探讨。包括首先,出资瑕疵股东在转让其出资瑕疵股权时负有告知义务；出资瑕疵股东具有基本的审核义务。 第五部分是本文的重点。对出资瑕疵相关当事人的法律责任进行了分析。首先分析了出资瑕疵股东民事法律责任的形式,包括违约责任、侵权责任、出资填补责任和连带赔偿责任。其次,就我国法律对出资瑕疵其他相关主体的民事法律责任的规定进行了介绍,并作出了自己的改善意见。
[Abstract]:The company law regulates the capital contribution system strictly, its purpose is to ensure that the company's capital is full, with good debt-paying ability to the outside, so that the interests of the creditors can be better protected. However, in real life, shareholders refuse to invest in violation of law or the company's articles of association, and they can not contribute, make false capital contribution, withdraw capital contribution, delay capital contribution and make capital contribution illegal. The behavior of investment flaw not only damages the legitimate rights and interests of the company, creditor and other shareholders, but also causes the disorder of market economy. On the basis of five aspects, the paper discusses the defects of shareholders' capital contribution, the theory of investment flaw, the legal value judgment of shareholders' investment flaw, the transfer of investment flaw stock rights, and the legal responsibility of the related subjects of capital contribution flaw. The first part discusses the shareholder's investment flaw. First, the concept of shareholder's investment flaw is defined, that is, the investment defect refers to the fact that the shareholder's capital contribution does not conform to these rules, if the shareholder's capital contribution does not conform to these rules, the property or property right which the shareholder is used for capital contribution is defective, or other capital contribution behavior has Defects, including substantive violations and non-substantive provisions on the obligation to contribute In the second place, the characteristics of the shareholder's capital contribution flaw are listed, including the violation of the capital contribution obligation, the capital does not accord with the provisions of the law or the Articles of Association, and some of the investment defects can be made up to three. Part. Thirdly, from the time of the illegal capital contribution behavior, the degree of the investment flaw and the object of the investment, the shareholder changes from the investment flaw behavior. Finally, from four aspects of asset-controlled regulation, the mandatory regulation of the minimum capital, the lack of practical significance, the singleness of the contribution form and the lack of strict physical capital contribution registration system, the author probes into the inherent characteristics of the shareholder's capital contribution flaw. The second part is the theoretical root cause of the shareholder's investment flaw. A discussion is made. The law between shareholders' contribution and capital Contact is the focus. Shareholders shall transfer funds to the Company's account in accordance with the provisions of the Articles of Association. Once this act is completed, the shareholders shall not be able to claim the funds at will The ownership of gold and the theory and practice of legal capital system, authorized capital system and trade-off capital system. This paper attempts to analyze the provisions of foreign laws on the form of shareholder capital contribution from the perspective of comparative jurisprudence, thus to improve the Chinese company law Secondly, on the basis of the principle of capital three, the regulation of shareholder's capital contribution is carried out. Finally, in 2005, the Company Law> reduced the minimum amount of registered capital, allowed the stage to be paid and enriched the form of non-cash capital contribution and so on. The legislators of China have gradually abandoned the severe capital contribution system instead of giving investors a relatively free choice The third part analyzes the law's behavior of capital contribution to shareholders. First of all, the author's qualification for investment defective shareholders At the same time, it is determined whether investors can take it in two aspects: substance and form. The Company's shareholders shall be entitled to the qualification of the Company's shareholders. In spite of the breach of the obligation of capital contribution, there is no definite provision in the laws of our country, in which case the capital contribution A person still has a shareholder qualification, and secondly, a shareholder's share of the investment defect The right of the east is defined. The shareholders shall exercise the shareholder's priority ratio in accordance with the actual paid capital dividends, the voting right of the shareholders in accordance with the paid capital contribution and the shareholders with the defect of capital contribution. The third part is correspondingly reduced. Finally, the shareholder's investment flaw behavior is discussed. The effect on the effectiveness of the Company. For a company with a general flaw, the requirements of the law are 鈥渙rder to correct鈥，
本文编号：2306954
[Abstract]:The company law regulates the capital contribution system strictly, its purpose is to ensure that the company's capital is full, with good debt-paying ability to the outside, so that the interests of the creditors can be better protected. However, in real life, shareholders refuse to invest in violation of law or the company's articles of association, and they can not contribute, make false capital contribution, withdraw capital contribution, delay capital contribution and make capital contribution illegal. The behavior of investment flaw not only damages the legitimate rights and interests of the company, creditor and other shareholders, but also causes the disorder of market economy. On the basis of five aspects, the paper discusses the defects of shareholders' capital contribution, the theory of investment flaw, the legal value judgment of shareholders' investment flaw, the transfer of investment flaw stock rights, and the legal responsibility of the related subjects of capital contribution flaw. The first part discusses the shareholder's investment flaw. First, the concept of shareholder's investment flaw is defined, that is, the investment defect refers to the fact that the shareholder's capital contribution does not conform to these rules, if the shareholder's capital contribution does not conform to these rules, the property or property right which the shareholder is used for capital contribution is defective, or other capital contribution behavior has Defects, including substantive violations and non-substantive provisions on the obligation to contribute In the second place, the characteristics of the shareholder's capital contribution flaw are listed, including the violation of the capital contribution obligation, the capital does not accord with the provisions of the law or the Articles of Association, and some of the investment defects can be made up to three. Part. Thirdly, from the time of the illegal capital contribution behavior, the degree of the investment flaw and the object of the investment, the shareholder changes from the investment flaw behavior. Finally, from four aspects of asset-controlled regulation, the mandatory regulation of the minimum capital, the lack of practical significance, the singleness of the contribution form and the lack of strict physical capital contribution registration system, the author probes into the inherent characteristics of the shareholder's capital contribution flaw. The second part is the theoretical root cause of the shareholder's investment flaw. A discussion is made. The law between shareholders' contribution and capital Contact is the focus. Shareholders shall transfer funds to the Company's account in accordance with the provisions of the Articles of Association. Once this act is completed, the shareholders shall not be able to claim the funds at will The ownership of gold and the theory and practice of legal capital system, authorized capital system and trade-off capital system. This paper attempts to analyze the provisions of foreign laws on the form of shareholder capital contribution from the perspective of comparative jurisprudence, thus to improve the Chinese company law Secondly, on the basis of the principle of capital three, the regulation of shareholder's capital contribution is carried out. Finally, in 2005, the Company Law> reduced the minimum amount of registered capital, allowed the stage to be paid and enriched the form of non-cash capital contribution and so on. The legislators of China have gradually abandoned the severe capital contribution system instead of giving investors a relatively free choice The third part analyzes the law's behavior of capital contribution to shareholders. First of all, the author's qualification for investment defective shareholders At the same time, it is determined whether investors can take it in two aspects: substance and form. The Company's shareholders shall be entitled to the qualification of the Company's shareholders. In spite of the breach of the obligation of capital contribution, there is no definite provision in the laws of our country, in which case the capital contribution A person still has a shareholder qualification, and secondly, a shareholder's share of the investment defect The right of the east is defined. The shareholders shall exercise the shareholder's priority ratio in accordance with the actual paid capital dividends, the voting right of the shareholders in accordance with the paid capital contribution and the shareholders with the defect of capital contribution. The third part is correspondingly reduced. Finally, the shareholder's investment flaw behavior is discussed. The effect on the effectiveness of the Company. For a company with a general flaw, the requirements of the law are 鈥渙rder to correct鈥，
本文编号：2306954
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