论公司解散清算中债权人利益保护问题研究
发布时间：2019-02-22 10:16
【摘要】：任何事物的发展都具有两面性。公司的发明既极大的推动了经济的发展,同时也给很多图谋不轨之徒提供了侵害债权人合法利益的工具。自公司被发明之日起,公司债权人利益始终难以得到十分有效的保护,究其根本原因是公司制度设计本身存在着瑕疵,即公司股东的有限责任和公司股东对公司的实际控制为公司损害债权人利益创造了条件。由于股东受公司有限责任原则的庇护,长期以来,公司股东尤其是大股东和控股股东利用公司损害债权人利益的现象时有发生。即便公司法不断完善和发展,但仍然难以弥补因公司有限责任制度而导致的公司股东与公司债权人之间的失衡格局。 与正常经营的公司相比,公司解散后对债权人的利益影响更大,以为为公司解散后,公司即将消亡,公司对债权人的担保由公司所有财产和公司经营可能的获利转变为单一的公司所有财产。公司解散后,债权人债权的实现依赖于对公司财产的分配,然而,由于被解散公司涉及的利益主体众多和解散清算程序的复杂,债权人的债权要顺利获得受偿并非易事。在我国,公司解散清算阶段长期以来都是债权人利益受损的重灾区,这种现象并未随着我国《公司法司法解释二》的实施而得到根本的好转。不可否认,《公司法司法解释二》是对公司解散清算制度的一次极大完善,但其过分局限于司法强制清算、清算程序规定不细、对清算组权利缺乏限制、清算期限规定留有口子及对公司解散后至清算组成立之前相关问题缺乏规定等不足也是客观存在的。《公司法司法解释二》虽然规定了债权人申请法院组织清算、申请更换清算组成员和损害赔偿请求权等权利,但却没有规定任何债权人主主动参与或监督公司解散清算程序的权利,这从一个侧面体现了解散清算制度对债权人利益保护的消极。 通过对不同国家公司法的比较,基于债权人对被解散公司财产享有的现实利益,概括出公司解散清算阶段债权人应当享有权利,同时,依据公司解散清算程序上的先后和公司解散、清算对债权人利益影响的不同,分别对公司解散阶段和公司清算阶段中债权人利益保护问题进行了探讨,结合公司解散清算制度较成熟国家的经验,深刻分析了我国公司解散清算程序保护债权人利益的不足。最后,结合我国的实际情况,针对我国公司解散清算程序存在的保护债权人利益不足问题,提出了几点完善的建议。
[Abstract]:There are two sides to the development of anything. The invention of the company not only greatly promoted the economy, but also provided a tool for many conspirators to encroach on the legitimate interests of creditors. Since the company was invented, the interests of the creditors of the company have been difficult to get very effective protection, the fundamental reason is that there are defects in the design of the company system. That is, the limited liability of the shareholders and the actual control of the company create conditions for the company to harm the interests of creditors. As shareholders are sheltered by the principle of limited liability of the company, for a long time, the phenomenon that the shareholders, especially the majority shareholders and the controlling shareholders, use the company to harm the interests of creditors has occurred from time to time. Even though the company law continues to improve and develop, it is still difficult to make up for the imbalance between the shareholders and the creditors of the company caused by the limited liability system of the company. Compared with the normally operated company, after the dissolution of the company, it has a greater impact on the interests of the creditors, thinking that after the dissolution of the company, the company is about to die out. The company's guarantee to the creditors is changed from the property of the company and the possible profit from the operation of the company to the sole property of the company. After the dissolution of a company, the realization of creditor's rights depends on the distribution of the company's property. However, due to the large number of stakeholders involved in the dissolution of the company and the complexity of the liquidation procedure, it is not easy for the creditor's claim to be repaid smoothly. In our country, the period of company dissolution and liquidation has long been the worst disaster area where the interests of creditors have been damaged. This phenomenon has not been fundamentally improved with the implementation of Company Law explanation II in our country. Undeniably, the Company Law explanation II is a great improvement to the liquidation system of company dissolution, but it is too limited to judicial compulsory liquidation, the liquidation procedure is not detailed, and the rights of liquidation group are not restricted. Deficiencies such as the opening of the liquidation time limit and the lack of provisions on the relevant issues after the dissolution of the company and before the establishment of the liquidation group are also objective. Although interpretation 2 of the Company Law stipulates that creditors apply to the court for the organization of liquidation, The right to apply for the replacement of members of the liquidation committee and the right to claim damages, but not the right of any creditor owner to take the initiative to participate in or supervise the dissolution of the liquidation proceedings of the company, This reflects the disbandment liquidation system from a side to protect the interests of creditors negative. Through the comparison of different countries' company law, based on the realistic interests of creditors to the property of the company that was dissolved, the author generalizes that the creditors should have the rights in the liquidation stage of the company's dissolution, and at the same time, According to the difference between the procedure of company dissolution and liquidation and the influence of liquidation on the interests of creditors, this paper discusses the protection of creditors' interests in the stage of company dissolution and liquidation respectively. Based on the experience of the mature countries, this paper analyzes deeply the deficiency of the company dissolution and liquidation procedure to protect the creditors' interests in our country. Finally, according to the actual situation of our country, this paper puts forward some suggestions on how to protect the interests of creditors in the liquidation procedure of company dissolution.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2428117
[Abstract]:There are two sides to the development of anything. The invention of the company not only greatly promoted the economy, but also provided a tool for many conspirators to encroach on the legitimate interests of creditors. Since the company was invented, the interests of the creditors of the company have been difficult to get very effective protection, the fundamental reason is that there are defects in the design of the company system. That is, the limited liability of the shareholders and the actual control of the company create conditions for the company to harm the interests of creditors. As shareholders are sheltered by the principle of limited liability of the company, for a long time, the phenomenon that the shareholders, especially the majority shareholders and the controlling shareholders, use the company to harm the interests of creditors has occurred from time to time. Even though the company law continues to improve and develop, it is still difficult to make up for the imbalance between the shareholders and the creditors of the company caused by the limited liability system of the company. Compared with the normally operated company, after the dissolution of the company, it has a greater impact on the interests of the creditors, thinking that after the dissolution of the company, the company is about to die out. The company's guarantee to the creditors is changed from the property of the company and the possible profit from the operation of the company to the sole property of the company. After the dissolution of a company, the realization of creditor's rights depends on the distribution of the company's property. However, due to the large number of stakeholders involved in the dissolution of the company and the complexity of the liquidation procedure, it is not easy for the creditor's claim to be repaid smoothly. In our country, the period of company dissolution and liquidation has long been the worst disaster area where the interests of creditors have been damaged. This phenomenon has not been fundamentally improved with the implementation of Company Law explanation II in our country. Undeniably, the Company Law explanation II is a great improvement to the liquidation system of company dissolution, but it is too limited to judicial compulsory liquidation, the liquidation procedure is not detailed, and the rights of liquidation group are not restricted. Deficiencies such as the opening of the liquidation time limit and the lack of provisions on the relevant issues after the dissolution of the company and before the establishment of the liquidation group are also objective. Although interpretation 2 of the Company Law stipulates that creditors apply to the court for the organization of liquidation, The right to apply for the replacement of members of the liquidation committee and the right to claim damages, but not the right of any creditor owner to take the initiative to participate in or supervise the dissolution of the liquidation proceedings of the company, This reflects the disbandment liquidation system from a side to protect the interests of creditors negative. Through the comparison of different countries' company law, based on the realistic interests of creditors to the property of the company that was dissolved, the author generalizes that the creditors should have the rights in the liquidation stage of the company's dissolution, and at the same time, According to the difference between the procedure of company dissolution and liquidation and the influence of liquidation on the interests of creditors, this paper discusses the protection of creditors' interests in the stage of company dissolution and liquidation respectively. Based on the experience of the mature countries, this paper analyzes deeply the deficiency of the company dissolution and liquidation procedure to protect the creditors' interests in our country. Finally, according to the actual situation of our country, this paper puts forward some suggestions on how to protect the interests of creditors in the liquidation procedure of company dissolution.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
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