论无权处分下的有限责任公司隐名股东股权之变动与保护
发布时间：2019-01-07 18:19
【摘要】：随着我国市场经济的不断发展,投资人出于各种原因在有限责任公司中隐名出资的现象广泛存在,因隐名投资产生的纠纷数量也日益增加,该类问题处理已成为司法实践中的焦点问题。其中,显名股东面对利益驱使擅自转让隐名股权是该类纠纷中较为突出和较难处理的问题。该类纠纷处理的复杂性主要体现在以下两方面:第一、善意第三人能否适用善意取得制度取得隐名股权,如何确定具体的适用要件;第二、隐名股权被无权处分后,应如何运用现行法律规定,实现救济隐名股东权利的目的。妥善处理上述问题,对实现隐名投资纠纷统一裁判标准具有重要指引作用,同时也对维护隐名股东权利和市场交易秩序具有积极意义。本文分为四个部分。第一部分为隐名股东股权概述。主要论述何为无权处分隐名股权行为。该部分主要通过借鉴物权登记对抗法理,明确隐名股东资格的取得是来源于履行对公司的出资义务。工商登记仅具有登记对抗第三人的效力,不产生股东资格的设权性效力。同时提出无权处分隐名股权行为是建立在隐名股东具有股东资格、享有股东权利的基础之上,才存有无权处分之说。对于因违反法律强制性规定而隐名出资行为无效的隐名股东,因不享有股东资格,显名股东所作的处分行为不构成无权处分。第二部分为隐名股权无权处分下之股权变动。主要论述隐名股权如何发生变动。该部分将物权法的善意取得制度运用公司法,解决隐名股东与善意第三人之间的股权变动问题。从论述善意取得为什么能适用于隐名股权变动的法理基础,隐名股权善意取得的构成要件,及适用善意取得后的股权变动效果进行分析。提出第三人构成善意取得时隐名发生股权变动。而善意取得构成要件之交付要件仍应适用物权法的登记对抗法理,即善意第三人只有完成工商变更登记,才对隐名股东、公司、其他第三人具有对抗效力。第三部分为对隐名股东之救济。主要论述隐名股权变动后如何保护隐名股东权利问题。该部分主要从股权救济和债权救济两个方面分别提出隐名股东的权利的救济方式。股权救济方面主要运用公司法的方法,提出通过行使显名权或转让隐名股权实现救济;债权救济方面,主要分析无权处分行为在不同情形下,分别构成《民法总则》关于合同之债、无权代理之债、侵权之债、不当得利之债的有关规定,并可以根据具体情况向显名股东或其他第三人主张相应的债权。第四部分为隐名股东权益保护的立法完善。该部分主要论述如何通过立法完善保护隐名股东的权利,并从立法的原则和规则的制定提出建议。
[Abstract]:With the continuous development of market economy in China, the phenomenon of anonymous investment by investors in limited liability companies exists widely for various reasons, and the number of disputes arising from hidden investment is also increasing day by day. This kind of problems has become the focus of judicial practice. In this kind of disputes, it is more prominent and difficult to deal with the problem that explicit shareholders are driven to transfer hidden equity without authorization in the face of interests. The complexity of this kind of dispute resolution is mainly reflected in the following two aspects: first, whether the bona fide third party can apply the bona fide acquisition system to obtain hidden equity, and how to determine the specific applicable requirements; Secondly, how to use the current law to remedy the rights of dormant shareholders. Properly dealing with the above problems plays an important role in guiding the realization of the unified judgment standard of hidden investment disputes, and also has a positive significance in safeguarding the rights of anonymous shareholders and the order of market transactions. This paper is divided into four parts. The first part is an overview of the shares of dormant shareholders. Mainly discusses what is not entitled to dispose of anonymous equity behavior. In this part, it is made clear that the acquisition of dormant shareholder's qualification comes from fulfilling the obligation of capital contribution to the company by drawing lessons from the legal principle of the registration of real right. Industrial and commercial registration only has the effect of registration against the third party, and does not produce the establishment effect of shareholder qualification. At the same time, it is proposed that the unauthorized disposition of dormant shares is based on the fact that the dormant shareholders have the qualification of shareholders and enjoy the rights of shareholders, and that there is no right to dispose. For the dormant shareholders who are invalid because of violating the mandatory provisions of the law, because they do not enjoy the qualification of shareholders, the disposition made by the obvious shareholders does not constitute the unauthorized disposition. The second part is the change of stock right under the right of dormant equity. This paper mainly discusses how to change the anonymous equity. In this part, the bona fide acquisition system of real right law is applied to solve the problem of stock right change between hidden shareholders and bona fide third parties. This paper discusses why bona fide acquisition can be applied to the legal basis of share-right change, the constituent elements of bona fide acquisition of dormant equity, and the effect of share-changing after bona fide acquisition. The third party constitutes a bona fide acquisition of hidden name equity changes. The delivery elements of bona fide acquisition should still be subject to the registration countervailing principle of real right law, that is, the bona fide third party must complete the registration of industrial and commercial changes, and only then can it have antagonistic effect on the dormant shareholders, the company and the other third parties. The third part is the relief to dormant shareholders. This paper mainly discusses how to protect the rights of dormant shareholders after the change of anonymous equity. This part mainly puts forward the relief ways of the rights of hidden shareholders from two aspects: equity relief and creditor's right relief. In the aspect of stock right relief, it mainly uses the method of company law, and puts forward that the remedy can be realized by exercising explicit name right or transferring anonymous equity right. With regard to the relief of creditor's rights, it mainly analyzes the relevant provisions of the General principles of the Civil Law on the obligation of contract, the debt of agency without power, the debt of infringement, the debt of improper enrichment, respectively, under different circumstances. And according to specific circumstances to the obvious shareholders or other third parties claim the corresponding creditor's rights. The fourth part is the legislative perfection of the protection of the rights and interests of anonymous shareholders. This part mainly discusses how to perfect and protect the rights of hidden shareholders through legislation, and puts forward some suggestions on the principles and rules of legislation.
【学位授予单位】：深圳大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
本文编号：2403978
[Abstract]:With the continuous development of market economy in China, the phenomenon of anonymous investment by investors in limited liability companies exists widely for various reasons, and the number of disputes arising from hidden investment is also increasing day by day. This kind of problems has become the focus of judicial practice. In this kind of disputes, it is more prominent and difficult to deal with the problem that explicit shareholders are driven to transfer hidden equity without authorization in the face of interests. The complexity of this kind of dispute resolution is mainly reflected in the following two aspects: first, whether the bona fide third party can apply the bona fide acquisition system to obtain hidden equity, and how to determine the specific applicable requirements; Secondly, how to use the current law to remedy the rights of dormant shareholders. Properly dealing with the above problems plays an important role in guiding the realization of the unified judgment standard of hidden investment disputes, and also has a positive significance in safeguarding the rights of anonymous shareholders and the order of market transactions. This paper is divided into four parts. The first part is an overview of the shares of dormant shareholders. Mainly discusses what is not entitled to dispose of anonymous equity behavior. In this part, it is made clear that the acquisition of dormant shareholder's qualification comes from fulfilling the obligation of capital contribution to the company by drawing lessons from the legal principle of the registration of real right. Industrial and commercial registration only has the effect of registration against the third party, and does not produce the establishment effect of shareholder qualification. At the same time, it is proposed that the unauthorized disposition of dormant shares is based on the fact that the dormant shareholders have the qualification of shareholders and enjoy the rights of shareholders, and that there is no right to dispose. For the dormant shareholders who are invalid because of violating the mandatory provisions of the law, because they do not enjoy the qualification of shareholders, the disposition made by the obvious shareholders does not constitute the unauthorized disposition. The second part is the change of stock right under the right of dormant equity. This paper mainly discusses how to change the anonymous equity. In this part, the bona fide acquisition system of real right law is applied to solve the problem of stock right change between hidden shareholders and bona fide third parties. This paper discusses why bona fide acquisition can be applied to the legal basis of share-right change, the constituent elements of bona fide acquisition of dormant equity, and the effect of share-changing after bona fide acquisition. The third party constitutes a bona fide acquisition of hidden name equity changes. The delivery elements of bona fide acquisition should still be subject to the registration countervailing principle of real right law, that is, the bona fide third party must complete the registration of industrial and commercial changes, and only then can it have antagonistic effect on the dormant shareholders, the company and the other third parties. The third part is the relief to dormant shareholders. This paper mainly discusses how to protect the rights of dormant shareholders after the change of anonymous equity. This part mainly puts forward the relief ways of the rights of hidden shareholders from two aspects: equity relief and creditor's right relief. In the aspect of stock right relief, it mainly uses the method of company law, and puts forward that the remedy can be realized by exercising explicit name right or transferring anonymous equity right. With regard to the relief of creditor's rights, it mainly analyzes the relevant provisions of the General principles of the Civil Law on the obligation of contract, the debt of agency without power, the debt of infringement, the debt of improper enrichment, respectively, under different circumstances. And according to specific circumstances to the obvious shareholders or other third parties claim the corresponding creditor's rights. The fourth part is the legislative perfection of the protection of the rights and interests of anonymous shareholders. This part mainly discusses how to perfect and protect the rights of hidden shareholders through legislation, and puts forward some suggestions on the principles and rules of legislation.
【学位授予单位】：深圳大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
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