瑕疵股权转让合同的效力及民事责任认定研究
发布时间：2018-11-15 17:52
【摘要】：各国公司立法都对股东的出资责任进行了严格规定,但是实践中股东违反出资义务,瑕疵出资的现象仍然大量存在。瑕疵股权的存在为瑕疵股权转让提供了现实基础。近年来,由瑕疵出资引发的瑕疵股权转让纠纷不断涌现,我国现行《公司法》对此仅作了原则性规定,现实生活的复杂多变与制度供给不足之间的矛盾在司法实践中不断凸显出来。本文试图从瑕疵股权转让合同效力及后续民事责任承担两个角度,结合司法实践真实发生的案例对瑕疵股权转让问题加以探讨,以期对司法实践中该类纠纷的妥善解决有所助益。 本文除引言和结论外分为三个部分,内容安排结构如下： 第一部分选取司法实践中的真实案例。通过案例揭露瑕疵股权转让纠纷中存在的焦点问题,同时介绍人民法院处理该类问题上午司法意见,从而引出本文所要探讨的问题。 第二部分提炼瑕疵股权转让纠纷中的焦点、难点问题。瑕疵股权转让纠纷中的焦点、难点问题体现在两个方面：一是瑕疵股权转让合同的效力认定；二是瑕疵股权转让后的民事责任承担。 第三部分针对瑕疵股权转让纠纷中的焦点、难点问题进行理论分析。该部分主要论述瑕疵股权转让合同的效力及后续民事责任的承担问题。一方面,对于瑕疵股权转让合同的效力问题,当前主要有四种观点,即合同有效说、合同无效说、合同可撤销说、折中说。在简要地介绍完理论界及实务界的主要观点之后,本文从当事人意思表示与瑕疵股权本身两个角度对瑕疵股权转让合同的效力进行了分析和评判。另一方面,本文对瑕疵股权转让后的民事责任承担问题进行了介绍与评析。对于这一问题,当前存在受让人承担责任说、出让人承担责任说、连带责任说、区别责任说四种观点。在对上述四种观点进行简要介绍的同时,本文亦逐条对其进行了评析,并得出了本文对于瑕疵股权转让后民事责任承担的处理意见。 瑕疵股权转让问题的现实意义是显而易见的。本文观点存在诸多偏颇之处,仅盼起到抛砖引玉的作用,使该制度不断发展、完善,从而更好地指导公司法实践。
[Abstract]:All over the world, the liability of shareholders' contribution is strictly regulated in the legislation of companies, but in practice, the phenomenon of defective capital contribution still exists because the shareholders violate the obligation of capital contribution. The existence of defective shares provides a realistic basis for the transfer of defective shares. In recent years, disputes over the transfer of defective shares caused by defective capital contribution have been constantly emerging, which are only stipulated in principle in the present Company Law of our country. The contradiction between the complexity of real life and the shortage of institutional supply has been highlighted in judicial practice. This paper attempts to discuss the issue of defective equity transfer from the perspective of the validity of the defective equity transfer contract and the subsequent civil liability, combined with the actual cases in judicial practice. In order to the judicial practice of this kind of disputes in a proper solution. In addition to the introduction and conclusion, this paper is divided into three parts. The content is arranged as follows: the first part selects the real cases in judicial practice. Through the case to reveal the defects in the transfer of equity disputes in the focus of the issue, at the same time introduced the people's court to deal with this kind of issues in the morning judicial opinion, thus leading to this article to explore the problem. The second part abstracts the focus and difficult problem in the dispute of the transfer of defective shares. The focus of the dispute on the transfer of defective shares lies in two aspects: one is the determination of the validity of the defective equity transfer contract; the other is the civil liability after the transfer of defective shares. The third part is the theoretical analysis of the focus and difficulties in the dispute of the transfer of defective shares. This part mainly discusses the validity of the defective equity transfer contract and the subsequent civil liability. On the one hand, there are mainly four views on the validity of the defective equity transfer contract, namely, the effective contract, the invalid contract, the revocation of the contract and the compromise. After a brief introduction of the main viewpoints of the theoretical and practical circles, this paper analyzes and evaluates the effectiveness of the defective equity transfer contract from the two angles of the parties' expression of intention and the defective equity itself. On the other hand, this paper introduces and evaluates the civil liability after the transfer of defective shares. For this problem, there are four viewpoints: transferee liability theory, transferor liability theory, joint liability theory and differentiated liability theory. At the same time, this paper makes a brief introduction to the above four viewpoints, and analyzes them one by one, and draws some opinions on how to deal with the civil liability after the transfer of defective shares. The practical significance of the issue of defective equity transfer is obvious. There are many biases in the view of this paper, which only hope to play the role of drawing on a brick, making the system develop and perfect, so as to better guide the practice of company law.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91;D923
本文编号：2334020
[Abstract]:All over the world, the liability of shareholders' contribution is strictly regulated in the legislation of companies, but in practice, the phenomenon of defective capital contribution still exists because the shareholders violate the obligation of capital contribution. The existence of defective shares provides a realistic basis for the transfer of defective shares. In recent years, disputes over the transfer of defective shares caused by defective capital contribution have been constantly emerging, which are only stipulated in principle in the present Company Law of our country. The contradiction between the complexity of real life and the shortage of institutional supply has been highlighted in judicial practice. This paper attempts to discuss the issue of defective equity transfer from the perspective of the validity of the defective equity transfer contract and the subsequent civil liability, combined with the actual cases in judicial practice. In order to the judicial practice of this kind of disputes in a proper solution. In addition to the introduction and conclusion, this paper is divided into three parts. The content is arranged as follows: the first part selects the real cases in judicial practice. Through the case to reveal the defects in the transfer of equity disputes in the focus of the issue, at the same time introduced the people's court to deal with this kind of issues in the morning judicial opinion, thus leading to this article to explore the problem. The second part abstracts the focus and difficult problem in the dispute of the transfer of defective shares. The focus of the dispute on the transfer of defective shares lies in two aspects: one is the determination of the validity of the defective equity transfer contract; the other is the civil liability after the transfer of defective shares. The third part is the theoretical analysis of the focus and difficulties in the dispute of the transfer of defective shares. This part mainly discusses the validity of the defective equity transfer contract and the subsequent civil liability. On the one hand, there are mainly four views on the validity of the defective equity transfer contract, namely, the effective contract, the invalid contract, the revocation of the contract and the compromise. After a brief introduction of the main viewpoints of the theoretical and practical circles, this paper analyzes and evaluates the effectiveness of the defective equity transfer contract from the two angles of the parties' expression of intention and the defective equity itself. On the other hand, this paper introduces and evaluates the civil liability after the transfer of defective shares. For this problem, there are four viewpoints: transferee liability theory, transferor liability theory, joint liability theory and differentiated liability theory. At the same time, this paper makes a brief introduction to the above four viewpoints, and analyzes them one by one, and draws some opinions on how to deal with the civil liability after the transfer of defective shares. The practical significance of the issue of defective equity transfer is obvious. There are many biases in the view of this paper, which only hope to play the role of drawing on a brick, making the system develop and perfect, so as to better guide the practice of company law.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91;D923
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