浅析公司设立中的非货币出资制度
发布时间：2019-01-23 17:00
【摘要】：新《公司法》修改了公司设立中的非货币出资制度,放宽了非货币出资形式,除了明文规定实物、知识产权和土地使用权这几种出资形式外,还概括了非货币财产出资的要件,即可以用货币估价可以依法转让,而其他法律、行政法规没有作出禁止性的规定。股权、债权等财产权利已经被允许作为出资。这一规定,体现了近些年我国公司资本制度的变化与发展,也反映了非货币出资立法理念的转变,即由法定资本制向授权资本制转变。随着市场经济的发展,在公司设立的实践中,将会有更多的符合条件的财产形式被允许作为出资。同时,要加强对非货币出资方式的监管,保护公司及其债权人的利益,维护交易的安全。实物是一种传统的出资方式,股东可用其拥有完全处分权的动产和不动产出资,出资必须由专业的评估机构评估作价,还要办理产权转移手续,防止虚假出资；知识产权出资取代原有的工业产权和非专利技术出资,意味着允许著作权、邻接权和计算机软件等无形资产作为出资。用知识产权进行出资,要考虑标的物的适格性问题,还要考虑知识产权出资的主体以及出资方式；土地使用权是另一种传统的非货币出资形式。从出资主体、出资的权利性质和权利取得方式来确定它的成立要件。土地使用权要按照办理出让手续、评估作价、交付使用、办理过户登记手续的程序进行；股权属于公司法规定的可以用货币估价并可以依法转让的非货币财产。出资的股权必须权属清晰、权能完整,且已足额缴纳,应由法定的评估机构评估作价,不得高于公司注册资本的70%。股权出资的主体一般包括投资人、、股权公司和被投资公司三类主体；以债权作为出资,主要有两种方式：一是“债转股”,就是将股东对债务人公司享有的债权转化为股东对本公司的出资。另一种是股东以其对第三人享有的债权作为出资投入到公司,并由公司对第三人享有债权。但要对出资债权的真实性及交付问题进行风险防范：劳务暂时不能作为出资,因为劳务具有人身依附性、不易衡量和评估性、无形性、和不可转让性。劳务虽然难以评估但是不等于不能评估,所有权不能转让,但其使用权是可以转让的。假如允许劳务资本作为出资方式,为了防范化解风险,要对其施以必要的法律限制。
[Abstract]:The new Company Law has modified the system of non-monetary capital contribution in the establishment of a company and relaxed the form of non-monetary capital contribution. In addition to specifying the forms of investment in kind, intellectual property rights and the right to use land, it also summarizes the requirements for the contribution of non-monetary property. That is to say, money valuation can be transferred according to law, while other laws and administrative regulations do not provide for prohibition. Equity, creditor's rights and other property rights have been allowed as a contribution. This regulation reflects the change and development of the company capital system in China in recent years, and also reflects the change of the legislative concept of non-monetary capital contribution, that is, from the statutory capital system to the authorized capital system. With the development of market economy, more eligible property forms will be allowed as capital contribution in the practice of company establishment. At the same time, we should strengthen the supervision of non-monetary contribution, protect the interests of companies and their creditors, and safeguard the security of transactions. The real object is one kind of traditional capital contribution, the shareholder may have the complete disposition right movable property and the immovable property capital contribution, the capital contribution must be assessed by the specialized appraisal organization to make the price, must go through the property right transfer procedure, prevents the false capital contribution; Intellectual property investment replaces the original industrial property right and non-patented technology investment, which means that intangible assets such as copyright, neighboring rights and computer software are allowed to contribute. In order to make capital contribution with intellectual property, we should consider the suitability of the subject matter, the subject of intellectual property contribution and the mode of capital contribution. Land use right is another traditional non-monetary form of capital contribution. From the subject of capital contribution, the nature of the right of capital contribution and the way to obtain the right to determine its requirements. The right to use the land shall be carried out in accordance with the procedures for handling the transfer procedures, assessing the price, delivering it to use, and handling the formalities of transfer of ownership registration; the equity rights shall belong to the non-monetary property that can be assessed with currency and can be transferred according to law under the company law. The ownership of capital contribution must be clear, complete, and paid in full, and shall be assessed and priced by the statutory appraisal body, and shall not be higher than the 70% of the registered capital of the company. The main body of equity contribution generally includes investor, equity company and invested company. There are two main ways to take creditor's rights as capital contribution: one is "debt-for-equity", which is to convert the creditor's rights to the debtor company into the shareholder's contribution to the company. The other is that the shareholders invest in the company with their claims to the third party, and the company has the creditor's rights on the third party. But it is necessary to guard against the authenticity and delivery of the capital contribution creditor's rights: the labor service cannot be regarded as the capital contribution temporarily, because the labor service has the personal dependence, is not easy to measure and evaluate, invisible, and not transferable. Although the labor service is difficult to evaluate, it does not mean that it can not be evaluated, the ownership can not be transferred, but its right of use can be transferred. If labor capital is allowed as capital contribution, it should be restricted by law in order to prevent and defuse risks.
【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：2414023
[Abstract]:The new Company Law has modified the system of non-monetary capital contribution in the establishment of a company and relaxed the form of non-monetary capital contribution. In addition to specifying the forms of investment in kind, intellectual property rights and the right to use land, it also summarizes the requirements for the contribution of non-monetary property. That is to say, money valuation can be transferred according to law, while other laws and administrative regulations do not provide for prohibition. Equity, creditor's rights and other property rights have been allowed as a contribution. This regulation reflects the change and development of the company capital system in China in recent years, and also reflects the change of the legislative concept of non-monetary capital contribution, that is, from the statutory capital system to the authorized capital system. With the development of market economy, more eligible property forms will be allowed as capital contribution in the practice of company establishment. At the same time, we should strengthen the supervision of non-monetary contribution, protect the interests of companies and their creditors, and safeguard the security of transactions. The real object is one kind of traditional capital contribution, the shareholder may have the complete disposition right movable property and the immovable property capital contribution, the capital contribution must be assessed by the specialized appraisal organization to make the price, must go through the property right transfer procedure, prevents the false capital contribution; Intellectual property investment replaces the original industrial property right and non-patented technology investment, which means that intangible assets such as copyright, neighboring rights and computer software are allowed to contribute. In order to make capital contribution with intellectual property, we should consider the suitability of the subject matter, the subject of intellectual property contribution and the mode of capital contribution. Land use right is another traditional non-monetary form of capital contribution. From the subject of capital contribution, the nature of the right of capital contribution and the way to obtain the right to determine its requirements. The right to use the land shall be carried out in accordance with the procedures for handling the transfer procedures, assessing the price, delivering it to use, and handling the formalities of transfer of ownership registration; the equity rights shall belong to the non-monetary property that can be assessed with currency and can be transferred according to law under the company law. The ownership of capital contribution must be clear, complete, and paid in full, and shall be assessed and priced by the statutory appraisal body, and shall not be higher than the 70% of the registered capital of the company. The main body of equity contribution generally includes investor, equity company and invested company. There are two main ways to take creditor's rights as capital contribution: one is "debt-for-equity", which is to convert the creditor's rights to the debtor company into the shareholder's contribution to the company. The other is that the shareholders invest in the company with their claims to the third party, and the company has the creditor's rights on the third party. But it is necessary to guard against the authenticity and delivery of the capital contribution creditor's rights: the labor service cannot be regarded as the capital contribution temporarily, because the labor service has the personal dependence, is not easy to measure and evaluate, invisible, and not transferable. Although the labor service is difficult to evaluate, it does not mean that it can not be evaluated, the ownership can not be transferred, but its right of use can be transferred. If labor capital is allowed as capital contribution, it should be restricted by law in order to prevent and defuse risks.
【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
【参考文献】
相关期刊论文 前2条
1 吕来明;关于股权出资的几个问题[J];法学杂志;2005年03期
2 冯果;股东现物出资若干问题研究[J];中国法学;1999年06期
，本文编号：2414023
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