略论瑕疵股权转让之责任承担

发布时间：2018-12-28 18:42

【摘要】：尽管各国立法对公司出资人的出资责任作出了严格的规定,但在实践中瑕疵出资仍是颇为普遍的现象。出资瑕疵的存在,直接导致瑕疵股权的产生,进而形成了瑕疵股权转让的物质基础。近年来,由瑕疵出资引发的瑕疵股权转让纠纷在实践中不断涌现,但是现行法律尚未予以明确规定。同时,公司法理论研究更多侧重于股东的瑕疵出资责任,也缺乏这方面系统性的论述。本文以一般意义上的有限责任公司为考察对象,将瑕疵股权限定为瑕疵出资引发的股权,以保护和平衡股东、公司及其债权人利益等相关利益人为出发点,对公司瑕疵股权的产生、瑕疵股权转让的效力以及法律责任的承担方式进行了探讨,并提出了相应的解决方法和建议。全文除引言和结语部分外,共分为四个部分,内容结构安排如下：第一部分,首先介绍了瑕疵股权的概念。从瑕疵、股权和出资瑕疵基本概念的界定上,继而得出瑕疵股权的广义和狭义的界定。其次,探讨了瑕疵股权的形成原因即瑕疵出资的具体形态,包括学理上的分类和现行的法律规定。第二部分,首先,探讨了出资瑕疵股东的股东资格问题,通过对出资、股东资格、股东权这三个概念的分析,我们可以得出结论,即瑕疵出资者仍拥有股东资格,享有股东权利,只不过这种权利因出资瑕疵而带有法律上的瑕疵。其次,其所享有的股权并不因出资瑕疵因素而丧失其可转让性,即瑕疵股权可以转让,并阐述了相应的理由。第三部分,首先简单介绍了关于瑕疵股权转让效力的不同学说——绝对无效说、绝对有效说、可撤销说和区别说。其次,判断瑕疵股权转让合同效力的基本原则,然后综合地评述了各个学说的优缺点,进而结合认定瑕疵股权转让效力的原则和思路,提出了本文的见解。然后分析出资瑕疵和当事人意思表示中的欺诈是否对瑕疵股权转让的效力的影响。最后,更具体的分析了在欺诈成立转为可撤销合同时的欺诈事由的举证责任、撤销权的行使及瑕疵股权转让合同被撤销的法律后果。第四部分,首先,阐述了判断瑕疵股权转让后瑕疵出资责任承担的基本原则,其次又分析了瑕疵股权转让纠纷的责任类型,紧接着三个部分分别探讨了瑕疵股权转让合同中转让人和受让人在合同的效力不同情况的认定下,对于守约股东、公司、公司债权人承担的责任分析,以及双方当事人之间的最终后续责任分担和追偿问题,其中,在对公司债权人承担的责任上,笔者提出自己的见解,即在善意受让人主张撤销瑕疵股权转让合同之时要区分是先债权人还是后债权人来对其承担不同的责任。最后,阐述了相关责任的诉讼时效及起算点。
[Abstract]:Although the legislation of various countries makes strict regulations on the liability of corporate investors, it is still a common phenomenon in practice. The existence of defective capital contribution leads directly to the production of defective equity, and then forms the material basis of the transfer of defective equity. In recent years, disputes over the transfer of defective shares caused by defective capital contribution have been emerging in practice, but the current law has not been clearly stipulated. At the same time, the theory of company law focuses more on the liability of shareholders' defective capital contribution, but also lacks of systematic discussion in this respect. This article regards the limited liability company in the general sense as the object of investigation, limits the defective stock right to the stock right caused by the defective capital contribution, and takes the protection and balance of the shareholders, the company and its creditors as the starting point. This paper probes into the emergence of defective stock right, the validity of the transfer of defective stock right and the way to assume legal responsibility, and puts forward some corresponding solutions and suggestions. In addition to the introduction and conclusion, the full text is divided into four parts. The content structure is arranged as follows: the first part introduces the concept of defective equity. From the basic definition of defect, equity and investment defect, the broad and narrow definition of defective equity is obtained. Secondly, it discusses the formation of defective equity, that is, the specific form of defective investment, including the theoretical classification and current legal provisions. The second part, first of all, discusses the shareholder qualification of defective shareholders. Through the analysis of the three concepts of capital contribution, shareholder qualification and shareholder right, we can draw a conclusion that the defective investor still has shareholder qualification. Enjoy shareholder rights, but these rights are legally flawed due to defective contributions. Secondly, it does not lose its transferability because of the defect of capital contribution, that is, the defective equity can be transferred, and explains the corresponding reasons. In the third part, the author briefly introduces the different theories about the validity of the transfer of defective shares-the theory of absolute invalidity, the theory of absolute validity, the theory of revocability and the theory of distinction. Secondly, the basic principles of judging the validity of defective equity transfer contract are given, and then the merits and demerits of each theory are comprehensively reviewed, and then the views of this paper are put forward in combination with the principles and ideas of recognizing the validity of defective equity transfer. Then it analyzes whether the defect of capital contribution and the fraud in the expression of the party's will affect the validity of the transfer of defective shares. Finally, the author analyzes the burden of proof of fraud, the exercise of cancellation right and the legal consequences of the cancellation of the defective equity transfer contract when the fraud is formed into a revocable contract. The fourth part, first of all, expounds the basic principles of the responsibility of defective contribution after judging the transfer of defective shares, and then analyzes the liability types of the disputes over the transfer of defective shares. In the following three parts, the author discusses separately the liability of the corporate creditors and the corporate creditors under the different conditions of the validity of the contract, the transferor and the transferee in the defective equity transfer contract. And the issue of the ultimate subsequent liability sharing and recovery between the two parties, among which, the author puts forward his own opinion on the liability to the creditors of the company. That is to say, when the bona fide transferee claims to rescind the defective equity transfer contract, it is necessary to distinguish the prior creditor from the later creditor to bear different responsibilities for it. Finally, the limitation and starting point of related liability are expounded.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91

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