瑕疵股权转让及其民事责任研究

发布时间：2018-11-27 21:28

【摘要】：由于主客观原因,在司法实务中,股东瑕疵出资的情况屡见不鲜,然现行公司立法并没有专门规范瑕疵股权转让相关民事责任的规范,虽新近实施的公司法司法解释对此作出了些许的规定,但仍未能就瑕疵股权转让之相关民事责任为类型化的细化分析,理论界又对此未达成共识,故由瑕疵股权转让而引发之瑕疵股权转让合同的效力及其转让后相关民事责任的承担则成为理论界与实务界研讨的重点。本文是藉有限责任公司为研究对象,试图通过有限责任公司这一典型的公司型制之瑕疵股权转让合同效力及其转让后相关民事责任的承担为粗浅研究,以期为实务中此类纠纷的解决提供解决途径和新思路。本文共分五个部分:第一部分,问题的提出。引出本文所要讨论的两个问题,即瑕疵股权转让合同的效力和瑕疵股权转让后的责任承担问题。第二部分,资本瑕疵股权概述。第三部分,资本瑕疵股权转让契约的效力。论证得出瑕疵股东仍享有股东资格,可以自由转让其瑕疵股权。首先分析有关瑕疵股权转让合同效力的主要学说,进而得出笔者的观点,即判断该合同的效力依据仍旧是合同法,但并非瑕疵股权受让人不知受让股权系存瑕疵即为该转让合同可撤销的原因,对此应当具体问题具体分析,限制可撤销合同的适用范围。第四部分,瑕疵股权转让后相关民事责任分析。本部分主要论述瑕疵股权转让后,出让人与受让人对公司、公司债权人及公司设立时的守约股东的责任应当如何分担,出让人与受让人间责任又如何分担。第五部分,相关立法完善与建议。
[Abstract]:Due to subjective and objective reasons, in judicial practice, the situation of shareholders' defective capital contribution is common, but the current company legislation does not specifically regulate the civil liability related to the transfer of defective shares. Although the newly implemented company law explanation has made some provisions on this issue, it still fails to make a detailed analysis of the types of civil liability related to the transfer of defective shares, and the theorists have not reached a consensus on this. Therefore, the validity of the defective equity transfer contract caused by the transfer of defective shares and the assumption of related civil liability after the transfer have become the focus of the theoretical and practical circles. In this paper, through limited liability company as the research object, trying to pass the limited liability company, a typical corporate system of defective equity transfer contract effectiveness and the transfer of civil liability after the transfer for a superficial study. In order to provide a solution to such disputes in practice and new ideas. This paper is divided into five parts: the first part, the question raised. This paper introduces two issues discussed in this paper, that is, the validity of the defective equity transfer contract and the liability after the defective equity transfer. The second part, the capital defect equity summary. The third part, the validity of capital defect equity transfer contract. It is concluded that defective shareholders still enjoy shareholder qualification and can freely transfer their defective shares. First of all, it analyzes the main theories about the validity of the defective equity transfer contract, and then comes to the author's opinion that the validity of the contract is still based on the contract law. However, it is not that the transferee of defective equity is the reason why the transfer contract can be revoked without knowing the defect of the transferred share right, so it should be analyzed concretely to limit the scope of application of the revocable contract. The fourth part, the analysis of civil liability after the transfer of defective shares. This part mainly discusses how the transferor and transferee share the responsibility of the company, the creditors and the shareholders when the company is set up, and how to share the responsibility between the transferee and the transferee. The fifth part, related legislation consummation and suggestion.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91;D923

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