公司人格否认在解散清算中的适用
发布时间：2019-03-13 12:41
【摘要】：公司人格否认是公司基本制度的例外,有效地弥补了股东有限责任和公司独立法人人格的固有缺陷。该理论自产生以来,在一人公司、母子公司、关联交易、解散和破产等诸多公司法实践领域得到了广泛适用。本文以《公司法司法解释(二)》的相关规定为视角,在公司解散清算的框架内探讨公司人格否认的适用。 论文主体部分共有四章,按照“提出问题,分析问题,解决问题”的构思布局,即第一章提出问题,第二、三章分别从理论和实践的角度分析问题,第四章解决问题。 第一章在概述公司人格否认和解散清算制度的基础上分析了二者之间的区别与联系。公司人格否认与解散清算虽属于公司法中不同的制度范畴,存在着诸多区别,但是在公司进入解散清算状态后,在平衡股东和债权人利益方面,二者不可避免地会产生功能的交叉与补充、矛盾与冲突。 第二章从法理基础、法律价值和法律原则三方面进行了法理研究。当股东不依法履行清算义务损害债权人利益时,公司人格否认与第三人侵害债权理论为债权人实现权利提供了双重理论支持,这两项理论的运用对于维护债权人利益和市场交易安全等具有重要的现实意义。为了恰当发挥上述理论的效用,应当遵循必要的法律原则,即平等保护、清算优先和注重效率。 第三章分析了立法和司法实践中存在的问题。现行司法解释的关键问题是严格限制了公司人格否认的适用条件,认为只有当公司出现无法清算等严重后果时才可以揭开公司的“面纱”,体现了“事后制裁”的特征,但这种“事后制裁”不仅未能及时平衡债权人和股东的利益,而且也没有保证解散清算制度的顺利实施。相关案例则反映了如何合理平衡债权人和股东的利益是实践中的难点。 第四章总结和完善了实体和程序法律规则。实体规则的核心是股东赔偿责任的确定,而适用过错推定原则是关键所在。程序规则的核心是股东赔偿诉讼的启动和中止程序的设计,既赋予股东及时启动诉讼的权利,又规定法院在一定条件下可以适时中止诉讼以恢复清算,二者的结合体现了“教育为先,惩罚在后”的指导思想。 在上述内容的基础上总结了核心观点:在公司解散清算中“慎用(公司人格否认)并不排斥及时适用,及时适用并非等同于滥用”,只有及时适用才能充分保障债权人的权利,而在适用过程中积极引导当事人回归正常的清算轨道、努力不揭开公司“面纱”才是从根本上维护了公司的基本制度,因此应从“事前预防”而非“事后制裁”的角度考虑如何设计相应的法律规范。
[Abstract]:The denial of corporate personality is the exception of the basic system of the company, which effectively makes up the inherent defects of the limited liability of shareholders and the personality of independent legal person of the company. Since its emergence, the theory has been widely applied in many practical fields of company law, such as one-man company, parent-subsidiary company, related transaction, dissolution and bankruptcy. This paper discusses the application of corporate personality denial within the framework of the dissolution and liquidation of companies from the perspective of the relevant provisions of interpretation of the Company Law (2). There are four chapters in the main part of the thesis. According to the conception and layout of "raising problems, analyzing problems, solving problems", that is, the first chapter puts forward the problems, the second and three chapters analyze the problems from the angle of theory and practice, and the fourth chapter solves the problems. The first chapter analyzes the differences and relations between the two systems on the basis of summarizing the system of corporate personality denial and dissolution liquidation. Although corporate personality denial and dissolution liquidation belong to different system categories in the company law, there are many differences, but after the company enters the dissolution liquidation state, it balances the interests of shareholders and creditors. The two will inevitably lead to the intersection and supplement of functions, contradictions and conflicts. The second chapter has carried on the legal principle research from the legal principle foundation, the legal value and the legal principle three aspects. When shareholders fail to perform liquidation obligations according to law to harm the interests of creditors, the theory of corporate personality denial and third-party infringement of creditor's rights provides dual theoretical support for the realization of creditors' rights. The application of these two theories is of great practical significance to safeguard the interests of creditors and the security of market transactions. In order to give full play to the utility of these theories, we should follow the necessary legal principles, that is, equal protection, priority of liquidation and emphasis on efficiency. The third chapter analyzes the problems existing in the legislative and judicial practice. The key issue of the current judicial interpretation is that it strictly limits the applicable conditions of the denial of corporate personality, and considers that only when the company has serious consequences such as failure to liquidate can it unveil the "veil" of the company and reflect the characteristics of "post-event sanctions". However, such "ex post sanctions" not only failed to balance the interests of creditors and shareholders in a timely manner, but also did not guarantee the smooth implementation of the dissolution liquidation system. Related cases reflect how to balance the interests of creditors and shareholders is difficult in practice. The fourth chapter summarizes and improves the substantive and procedural legal rules. The core of substantive rules is the determination of shareholders' liability, and the principle of presumption of fault is the key. The core of procedural rules is the design of starting and suspending procedure of shareholder compensation litigation, which not only gives shareholders the right to start litigation in time, but also stipulates that the court can suspend litigation in due time to resume liquidation under certain conditions. The combination of the two embodies the guiding ideology of "education first, punishment after". On the basis of the above-mentioned contents, this paper summarizes the core point of view: "careful use (denial of corporate personality) does not exclude timely application, and timely application is not equivalent to abuse". Only timely application can fully protect the rights of creditors. In the process of application, actively guiding the parties to return to the normal liquidation track and striving not to unveil the "veil" of the company is the fundamental maintenance of the basic system of the company. Therefore, how to design the corresponding legal norms should be considered from the point of view of "pre-prevention" rather than "post-sanctions".
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2439397
[Abstract]:The denial of corporate personality is the exception of the basic system of the company, which effectively makes up the inherent defects of the limited liability of shareholders and the personality of independent legal person of the company. Since its emergence, the theory has been widely applied in many practical fields of company law, such as one-man company, parent-subsidiary company, related transaction, dissolution and bankruptcy. This paper discusses the application of corporate personality denial within the framework of the dissolution and liquidation of companies from the perspective of the relevant provisions of interpretation of the Company Law (2). There are four chapters in the main part of the thesis. According to the conception and layout of "raising problems, analyzing problems, solving problems", that is, the first chapter puts forward the problems, the second and three chapters analyze the problems from the angle of theory and practice, and the fourth chapter solves the problems. The first chapter analyzes the differences and relations between the two systems on the basis of summarizing the system of corporate personality denial and dissolution liquidation. Although corporate personality denial and dissolution liquidation belong to different system categories in the company law, there are many differences, but after the company enters the dissolution liquidation state, it balances the interests of shareholders and creditors. The two will inevitably lead to the intersection and supplement of functions, contradictions and conflicts. The second chapter has carried on the legal principle research from the legal principle foundation, the legal value and the legal principle three aspects. When shareholders fail to perform liquidation obligations according to law to harm the interests of creditors, the theory of corporate personality denial and third-party infringement of creditor's rights provides dual theoretical support for the realization of creditors' rights. The application of these two theories is of great practical significance to safeguard the interests of creditors and the security of market transactions. In order to give full play to the utility of these theories, we should follow the necessary legal principles, that is, equal protection, priority of liquidation and emphasis on efficiency. The third chapter analyzes the problems existing in the legislative and judicial practice. The key issue of the current judicial interpretation is that it strictly limits the applicable conditions of the denial of corporate personality, and considers that only when the company has serious consequences such as failure to liquidate can it unveil the "veil" of the company and reflect the characteristics of "post-event sanctions". However, such "ex post sanctions" not only failed to balance the interests of creditors and shareholders in a timely manner, but also did not guarantee the smooth implementation of the dissolution liquidation system. Related cases reflect how to balance the interests of creditors and shareholders is difficult in practice. The fourth chapter summarizes and improves the substantive and procedural legal rules. The core of substantive rules is the determination of shareholders' liability, and the principle of presumption of fault is the key. The core of procedural rules is the design of starting and suspending procedure of shareholder compensation litigation, which not only gives shareholders the right to start litigation in time, but also stipulates that the court can suspend litigation in due time to resume liquidation under certain conditions. The combination of the two embodies the guiding ideology of "education first, punishment after". On the basis of the above-mentioned contents, this paper summarizes the core point of view: "careful use (denial of corporate personality) does not exclude timely application, and timely application is not equivalent to abuse". Only timely application can fully protect the rights of creditors. In the process of application, actively guiding the parties to return to the normal liquidation track and striving not to unveil the "veil" of the company is the fundamental maintenance of the basic system of the company. Therefore, how to design the corresponding legal norms should be considered from the point of view of "pre-prevention" rather than "post-sanctions".
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
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