公司瑕疵出资人股权转让问题研究
发布时间：2018-11-27 19:06
【摘要】： 在公司制度中,股东出资有着重要的意义,关系到股东、公司以及公司债权人的利益能否得到实现。对股东而言,股东出资一方面是股东对公司承担有限责任的物质基础；另一方面也是股东对公司享有股权的依据。对公司而言,股东出资既是公司获取独立人格的必备要件,又是公司得以营运和发展的物质基础。对公司债权人而言,股东出资是公司债务的总担保,是债权人实现其债权的物质基础和信用基础。我国公司股东出资瑕疵问题异常严重,而由此引发的瑕疵股权转让问题对交易安全也构成了极大的威胁,严重破坏了整个社会信用体系的建立。新修订的《中华人民共和国公司法》的颁布实施,虽然使我国公司制度得到了进一步的完善发展,针对原公司法在股东出资瑕疵的构成以及民事法律后果等方面的规定过于原则、实践中公司运作不甚规范等状况,对股东出资制度进行了较大幅度的修改,但仍存在诸多问题尚未明确。 本文共分四章。 第一章瑕疵出资的界定。出资是股东的基本义务之一,瑕疵出资是指股东违反出资义务,或履行出资义务不符合出资协议、公司章程或法律规定的情形。本章从股东出资制度谈起,对瑕疵出资进行了理论系统的分析,对瑕疵出资进行了概括界定。 第二章瑕疵出资人的法律地位。本章主要围绕出资瑕疵股东能否取得股东地位并行使股权,分析了出资瑕疵股东的法律地位问题。根据新《公司法》立法精神可知,瑕疵出资人并不因瑕疵出资而丧失其股东地位,其仍为公司股东,享有股东权利。但同时,结合其他一些国家和地区以及学者关于瑕疵出资的民事责任承担的有关规定及观点,股东瑕疵出资后,其股权应当受到相应限制,并且应当向公司其他股东及公司债权人承担相应的民事责任。 第三章瑕疵出资人股权转让效力分析。对于瑕疵出资股权转让合同是否有效理论界存在诸多争议,本章通过讨论分析认为,由于瑕疵出资人具有股东地位,其也就有权转让该股权,瑕疵股权转让合同应该具有效力。而由于股东转让的股权具有瑕疵,在其转让后又将会带来补缴义务等一系列问题的承担。笔者通过对瑕疵出资各方面的分析,结合司法实践及国外立法思想,层层深入,论述公司瑕疵出资人股权转让效力及其转让后补缴义务的承担问题,以期对解决实践中存在的瑕疵股权转让问题有所裨益。 第四章结语在归纳全文基础上进行总结。笔者认为,瑕疵出资人并不因其出资瑕疵而丧失股东地位,其仍享有股东权利,有权转让其股权。但由于股权具有瑕疵,瑕疵出资人的股东权利受到一定限制并承担相应的民事责任。并且在股权转让后,瑕疵出资人仍应承担补缴出资的义务。
[Abstract]:In the corporate system, shareholder contribution is of great significance, which concerns whether the interests of shareholders, companies and corporate creditors can be realized. For shareholders, shareholder contribution is the material basis for shareholders to bear limited liability to the company; on the other hand, it is the basis for shareholders to enjoy equity in the company. For a company, shareholder contribution is not only the essential requirement for the company to acquire independent personality, but also the material basis for the company to operate and develop. To the creditors of a company, the shareholder's contribution is the total guarantee of the company's debt, and the material basis and the credit basis for the creditors to realize their creditor's rights. The defect of shareholders' contribution is very serious in our country, but the problem of the transfer of defective shares also poses a great threat to the security of the transaction, which seriously damages the establishment of the whole social credit system. The promulgation and implementation of the newly revised Company Law of the people's Republic of China has further improved and developed our company system. In view of the excessive principle of the original company law on the constitution of shareholders' contribution defects and the civil legal consequences, and the fact that the operation of the company is not very standard in practice, the system of shareholder's contribution has been greatly modified. However, there are still many problems not yet clear. This paper is divided into four chapters. The first chapter is the definition of defective capital contribution. Capital contribution is one of the basic obligations of shareholders, and defective capital contribution refers to the situation that shareholders violate the obligation of capital contribution, or perform the obligation of contribution not in accordance with the investment agreement, the articles of association or the law. This chapter starts with the shareholder contribution system, analyzes the defective investment systematically, and defines the defective investment. Chapter II legal status of defective investors. In this chapter, the legal status of defective shareholders is analyzed around whether they can obtain shareholder status and exercise their equity. According to the legislative spirit of the new Company Law, the defective investor does not lose his shareholder status because of the defective capital contribution, and he is still the shareholder of the company and enjoys the shareholder rights. But at the same time, combined with some other countries and regions and scholars on the civil liability for defective investment, shareholders' equity should be restricted. And shall bear the corresponding civil liability to other shareholders and creditors of the company. Chapter three analyzes the effect of equity transfer of defective investors. There are a lot of disputes about the validity of the transfer contract of defective capital stock right. Through discussion and analysis, this chapter holds that because the defective investor has the status of shareholder, he has the right to transfer the stock right, and the defective equity transfer contract should have effect. However, due to the defect of shareholders' equity transfer, it will bring about a series of problems such as the obligation to pay after its transfer. Through the analysis of all aspects of defective capital contribution, combined with judicial practice and foreign legislative thought, the author discusses the effect of equity transfer of defective investors and the commitment of repaying obligation after transfer. In order to solve the problem of flawed equity transfer in practice. The fourth chapter summarizes the conclusion on the basis of the full text. The author believes that the defective investor does not lose his shareholder status because of the defect of his capital contribution, and he still enjoys the right of shareholders and the right to transfer his equity. However, due to the defect of equity, the shareholder rights of defective investors are limited and bear the corresponding civil liability. And after the equity transfer, the defective investor should still bear the obligation to make up the capital contribution.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2361755
[Abstract]:In the corporate system, shareholder contribution is of great significance, which concerns whether the interests of shareholders, companies and corporate creditors can be realized. For shareholders, shareholder contribution is the material basis for shareholders to bear limited liability to the company; on the other hand, it is the basis for shareholders to enjoy equity in the company. For a company, shareholder contribution is not only the essential requirement for the company to acquire independent personality, but also the material basis for the company to operate and develop. To the creditors of a company, the shareholder's contribution is the total guarantee of the company's debt, and the material basis and the credit basis for the creditors to realize their creditor's rights. The defect of shareholders' contribution is very serious in our country, but the problem of the transfer of defective shares also poses a great threat to the security of the transaction, which seriously damages the establishment of the whole social credit system. The promulgation and implementation of the newly revised Company Law of the people's Republic of China has further improved and developed our company system. In view of the excessive principle of the original company law on the constitution of shareholders' contribution defects and the civil legal consequences, and the fact that the operation of the company is not very standard in practice, the system of shareholder's contribution has been greatly modified. However, there are still many problems not yet clear. This paper is divided into four chapters. The first chapter is the definition of defective capital contribution. Capital contribution is one of the basic obligations of shareholders, and defective capital contribution refers to the situation that shareholders violate the obligation of capital contribution, or perform the obligation of contribution not in accordance with the investment agreement, the articles of association or the law. This chapter starts with the shareholder contribution system, analyzes the defective investment systematically, and defines the defective investment. Chapter II legal status of defective investors. In this chapter, the legal status of defective shareholders is analyzed around whether they can obtain shareholder status and exercise their equity. According to the legislative spirit of the new Company Law, the defective investor does not lose his shareholder status because of the defective capital contribution, and he is still the shareholder of the company and enjoys the shareholder rights. But at the same time, combined with some other countries and regions and scholars on the civil liability for defective investment, shareholders' equity should be restricted. And shall bear the corresponding civil liability to other shareholders and creditors of the company. Chapter three analyzes the effect of equity transfer of defective investors. There are a lot of disputes about the validity of the transfer contract of defective capital stock right. Through discussion and analysis, this chapter holds that because the defective investor has the status of shareholder, he has the right to transfer the stock right, and the defective equity transfer contract should have effect. However, due to the defect of shareholders' equity transfer, it will bring about a series of problems such as the obligation to pay after its transfer. Through the analysis of all aspects of defective capital contribution, combined with judicial practice and foreign legislative thought, the author discusses the effect of equity transfer of defective investors and the commitment of repaying obligation after transfer. In order to solve the problem of flawed equity transfer in practice. The fourth chapter summarizes the conclusion on the basis of the full text. The author believes that the defective investor does not lose his shareholder status because of the defect of his capital contribution, and he still enjoys the right of shareholders and the right to transfer his equity. However, due to the defect of equity, the shareholder rights of defective investors are limited and bear the corresponding civil liability. And after the equity transfer, the defective investor should still bear the obligation to make up the capital contribution.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
【引证文献】
中国硕士学位论文全文数据库 前4条
1 王斌;瑕疵出资股权转让法律问题研究[D];大连海事大学;2011年
2 徐翠竹;有限责任公司瑕疵出资民事责任[D];南京大学;2011年
3 谷梦婕;瑕疵股权转让合同效力的认定及民事责任承担[D];上海交通大学;2011年
4 周寒梅;出资瑕疵之股权转让问题研究[D];湖南大学;2011年
，本文编号：2361755
本文链接：https://www.wllwen.com/falvlunwen/gongsifalunwen/2361755.html
