股东债权出资及其风险法律规制

发布时间：2018-11-03 14:21

【摘要】：从经济学的角度出发，任何能够给股东带来回报的财产或利益、权益，都应该被投入到经济循环中去，不断地为社会创造财富、为股东创造利润。但是，关于财产或利益、权益的认识需要一个逐步深化的过程，各种新类型的财产在经济循环中被发现、被确认，包括股权、债权、知识产权等，不只限于货币和实物，在资本观念上促使社会朝有利于股东投资的方向变化。股东对公司的出资方式、范围随着公司制度改革、法律法规的健全、公司信用基础的转变在不断扩大，债权作为既有财产价值又具有可转让性的财产已经不断地出现在公司非货币出资形式之中，但是由于债权自身的隐蔽性、不确定性、任意性、难评估性以及债权转让过程中的风险性，在允许其作为出资方式的同时，我们要从法律制度上加以完善。本文通过对股东债权出资一般问题的探讨，寻找到债权出资的意义，为下文的写作铺开笔，公司资本制度确定债权出资方式有其理论依据和现实基础，，符合社会经济发展的需求，法律法规的健全，以及公司法的不断完善为债权作为出资标的提供了法律依据。债权出资，是以对公司的债权、对第三人的债权为出资标的，目前，学者多关注对公司的债权出资的研究，而且相关的行政法规、规章和司法解释也认可了其可行性。但是，从理论、立法到实践，以第三人的债权出资则缺乏相关的操作细则，这方面问题的研究目前也没有引起学界的关注。以第三人债权出资与以公司债权出资相比较更具有风险性，本文围绕第三人债权这一社会财富的重要载体，借鉴国外债权出资的立法实践，立足前人对公司债权出资研究的基础上，深入探讨了以第三人债权出资进的理论依据和现实基础，剖析以第三人债权出资所具有的风险性、从克服债权出资的缺陷入手设计了债权出资的法律约束机制，提出自己的见解和构想。
[Abstract]:From the point of view of economics, any property, interests and interests that can bring returns to shareholders should be invested in the economic cycle to create wealth for society and profits for shareholders. However, with regard to property or interests, the recognition of rights and interests requires a gradual deepening process in which new types of property are found and recognized in the economic cycle, including equity, creditor's rights, intellectual property, etc., and are not limited to money or physical objects. In the concept of capital to promote social change in favour of shareholder investment direction. With the reform of the company's system, the sound laws and regulations, and the transformation of the company's credit base, the scope of the shareholders' contribution to the company is constantly expanding. Creditor's rights, as a property with both property value and transferability, have been constantly appearing in the form of non-monetary capital contribution of the company, but due to the concealment, uncertainty and arbitrariness of the creditor's rights themselves, Difficult to evaluate and the risk in the process of debt transfer, we should perfect the legal system while allowing it to be used as a form of capital contribution. In this paper, through the discussion of the general problems of shareholders' creditor's rights contribution, we find the significance of creditor's rights contribution, and open the pen for the following writing. The company's capital system has its theoretical basis and practical basis to determine the way of creditor's rights' contribution. In line with the needs of social and economic development, the perfection of laws and regulations, and the continuous improvement of company law, it provides legal basis for creditor's rights as the object of capital contribution. The capital contribution of creditor's rights is based on the creditor's rights of the company and the creditor's rights of the third party. At present, scholars pay more attention to the research of the capital contribution of the creditor's rights of the company, and the relevant administrative regulations, regulations and judicial explanations also approve its feasibility. However, from theory, legislation to practice, the third party's creditor's rights contribution is lack of relevant operating rules, and the research on this issue has not aroused the attention of scholars. The third party's creditor's rights contribution is more risky than the company's creditor's rights contribution. This paper focuses on the third party's creditor's rights, which is an important carrier of social wealth, and draws lessons from the legislative practice of foreign creditor's rights. Based on the previous research on the capital contribution of the company's creditor's rights, this paper probes into the theoretical basis and the practical basis of the contribution of the third party's creditor's rights, and analyzes the risk of the third party's creditor's rights contribution. From overcoming the defects of creditor's rights contribution, the author designs the legal restraint mechanism of creditor's rights contribution, and puts forward his own opinion and conception.
【学位授予单位】：兰州商学院
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.291.91

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