公司僵局之司法救济制度研究
发布时间：2018-12-15 03:50
【摘要】：公司僵局指公司在存续运行中由于股东、董事之间矛盾发展到不可调和的地步而陷入僵局,由于股东、董事之间彼此对峙无法按照同常的公司管理规则作出决策,使得公司经营无法正常运行甚至陷入瘫痪境地。公司僵局不仅给公司、股东造成损害,而且相关债权人以及社会经济利益都会受到极大影响,因此应当予以司法救济。 目前我国《公司法》针对公司僵局仅规定了一条救济措施,即司法解散公司。《公司法》第一百八十三条规定：“公司经营管理发生严重困难,继续存续会使股东利益受到重大损失,通过其他途径不能解决的,持有公司全部股东表决权百分之十以上的股东,可以请求人民法院解散公司。”通过司法强制解散公司,可以彻底地解决公司僵局纠纷,但同时消灭公司人格,代价巨大。面对各种公司僵局情形,现行法律已经明显滞后,急需借鉴各国关于公司僵局救济的法律规定,结合我国司法制度环境,制定新的公司僵局救济法律,以适应当下之需。 本文以现行法律框架为基础,通过引入案例,提出我国目前在公司僵局司法救济方面存在的不足,介绍国外各国在公司僵局司法救济方面的制度设置,并作了对比分析,在此基础上结合我国实际情况对完善我国公司僵局司法救济提出一些看法。 本文大致分为四个部分。第一部分,引入康和国际发展有限公司诉北京市营力集团公司解散案,并从法律角度作出分析,提出目前我国公司僵局司法实践中存在的问题。第二部分,以提出的问题为出发点,从诉讼选择、受理条件、当事人地位以及解散与清算四个方面分析公司僵局司法救济的基本问题。第三部分,介绍英国、美国、德国及同本等国在公司僵局纠纷解决方面的规定,对比分析我国目前在这方面存在的问题,为接下来完善我国公司僵局司法救济法律提出建议打下基础。最后一部分,提出完善公司僵局司法救济制度的构想,明确提出公司僵局概念,引入强制股权收购制度,重视司法解散公司制度,而指定代理人和临时董事制度因制度环境和文化差异等原因目前并不适合引入。
[Abstract]:Corporate deadlock refers to the deadlock in the company because of the irreconcilable contradiction between the shareholders and directors in the course of the company's surviving operation. As a result of the shareholders, the directors can not make decisions according to the common rules of the company management because of the confrontation between the shareholders and the directors. The company can not run properly or even become paralyzed. Corporate deadlock not only damages the company, shareholders, but also the relevant creditors and social economic interests, so it should be given judicial relief. At present, the Company Law of our country provides only one relief measure against the deadlock of the company, that is, judicial dissolution of the company. Article 183 of the Company Law stipulates: "serious difficulties have occurred in the management of the company." If the continued existence of the shareholders will cause serious losses to the interests of the shareholders and cannot be solved by other means, the shareholders who hold more than 10% of the voting rights of all shareholders of the company may request the people's court to dissolve the company. " Dissolving the company by judicial compulsion can solve the deadlock dispute thoroughly, but at the same time, the company personality can be eliminated, and the cost is enormous. In the face of various situations of corporate deadlock, the current law has obviously lagged behind, so it is urgent to draw lessons from the legal provisions of various countries on the relief of corporate deadlock, and to formulate a new relief law for corporate deadlock according to the judicial system environment of our country, in order to meet the needs of the present. Based on the current legal framework and by introducing a case, this paper points out the deficiencies in the judicial relief of the corporate deadlock in China, introduces the system settings of the judicial relief of the corporate deadlock in foreign countries, and makes a comparative analysis. On the basis of this, the author puts forward some views on how to perfect the judicial remedy of corporate deadlock in our country combined with the actual situation in our country. This paper is divided into four parts. The first part introduces the case of Kang he International Development Co., Ltd. v. Beijing Yingli Group Company, and analyzes it from the point of view of law, and points out the problems existing in the judicial practice of the current corporate deadlock in our country. The second part analyzes the basic problems of judicial remedy of corporate deadlock from four aspects: the choice of litigation, the conditions of acceptance, the status of the parties and the dissolution and liquidation. The third part introduces the provisions of the United Kingdom, the United States, Germany and other countries in the settlement of the company deadlock dispute, and analyzes the existing problems in this respect in China. It lays the foundation for perfecting the judicial remedy law of company deadlock in our country. In the last part, the author puts forward the idea of perfecting the judicial remedy system of corporate deadlock, puts forward clearly the concept of corporate deadlock, introduces the system of compulsory stock acquisition, and attaches importance to the judicial dissolution of the company system. However, the appointed agent and temporary director system are not suitable for introduction due to the differences of institutional environment and culture.
【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
[Abstract]:Corporate deadlock refers to the deadlock in the company because of the irreconcilable contradiction between the shareholders and directors in the course of the company's surviving operation. As a result of the shareholders, the directors can not make decisions according to the common rules of the company management because of the confrontation between the shareholders and the directors. The company can not run properly or even become paralyzed. Corporate deadlock not only damages the company, shareholders, but also the relevant creditors and social economic interests, so it should be given judicial relief. At present, the Company Law of our country provides only one relief measure against the deadlock of the company, that is, judicial dissolution of the company. Article 183 of the Company Law stipulates: "serious difficulties have occurred in the management of the company." If the continued existence of the shareholders will cause serious losses to the interests of the shareholders and cannot be solved by other means, the shareholders who hold more than 10% of the voting rights of all shareholders of the company may request the people's court to dissolve the company. " Dissolving the company by judicial compulsion can solve the deadlock dispute thoroughly, but at the same time, the company personality can be eliminated, and the cost is enormous. In the face of various situations of corporate deadlock, the current law has obviously lagged behind, so it is urgent to draw lessons from the legal provisions of various countries on the relief of corporate deadlock, and to formulate a new relief law for corporate deadlock according to the judicial system environment of our country, in order to meet the needs of the present. Based on the current legal framework and by introducing a case, this paper points out the deficiencies in the judicial relief of the corporate deadlock in China, introduces the system settings of the judicial relief of the corporate deadlock in foreign countries, and makes a comparative analysis. On the basis of this, the author puts forward some views on how to perfect the judicial remedy of corporate deadlock in our country combined with the actual situation in our country. This paper is divided into four parts. The first part introduces the case of Kang he International Development Co., Ltd. v. Beijing Yingli Group Company, and analyzes it from the point of view of law, and points out the problems existing in the judicial practice of the current corporate deadlock in our country. The second part analyzes the basic problems of judicial remedy of corporate deadlock from four aspects: the choice of litigation, the conditions of acceptance, the status of the parties and the dissolution and liquidation. The third part introduces the provisions of the United Kingdom, the United States, Germany and other countries in the settlement of the company deadlock dispute, and analyzes the existing problems in this respect in China. It lays the foundation for perfecting the judicial remedy law of company deadlock in our country. In the last part, the author puts forward the idea of perfecting the judicial remedy system of corporate deadlock, puts forward clearly the concept of corporate deadlock, introduces the system of compulsory stock acquisition, and attaches importance to the judicial dissolution of the company system. However, the appointed agent and temporary director system are not suitable for introduction due to the differences of institutional environment and culture.
【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
【相似文献】
相关期刊论文 前10条
1 余t，
本文编号：2379913
本文链接：https://www.wllwen.com/falvlunwen/gongsifalunwen/2379913.html
