论合伙取得股东资格
发布时间：2019-03-13 18:56
【摘要】： 合伙取得股东资格是形成股份共有的原因之一。日本、德国、法国等多个国家都在公司法中对股份共有进行了详尽的规定,但是我国的公司法并没有对股份的共有做出明确的规范,更不用说对合伙取得股东资格的规范。 所谓合伙取得股东资格就是指合伙组织作为一种独立于自然人和法人的第三种形态的民事主体,以其所掌握的财产作为出资,取得目标公司的股东资格,从而成为目标公司的股东,享有股东权利和承担股东义务。 由于我国《公司法》与《合伙企业法》都没有对合伙取得股东资格进行相关的规定,使得民众对该问题缺少清晰的认识。因此本文将从以下几个方面来对合伙取得股东资格进行分析: 第一部分:对合伙取得股东资格的合理性进行分析。从法理学、民法以及公司法的角度出发,寻找对合伙取得股东资格的合理性的支持。在法律的层面上对合伙取得股东资格进行肯定,明确合伙取得股东资格并不违反我国现行的法律规定。 第二部分:着重对合伙取得股东资格进行讨论。通过对合伙取得股东资格的主体的分析,明确哪些合伙可以取得股东资格;通过对合伙取得股东资格方式的探讨,表明合伙合法取得股东资格的途径;通过对合伙取得股东资格的要件的总结,以确定合伙取得股东资格的要素;通过对合伙取得股东资格的认定的讨论,可以使人们在面对该问题时可以做出正确的判断;最后通过对合伙取得股东资格的实质的解读,以端正合伙取得股东资格的目的。 第三部分:对合伙取得股东资格进行讨论之后,作为公司股东所应当享有的股东权利和承担相应的股东责任进行分析,以明确合伙在取得股东资格之后在权利的行使与义务的承担方面与自然人股东与法人股东的不同之处,明确其享有权利和承担义务的方式。 第四部分:对在合伙取得股东资格之后可能出现的若干问题进行简单的阐述,为可能发生的纠纷提供解决方法。 本文从多个方面对合伙取得股东资格进行比较详尽的阐述与分析,目的是为了在现有法律存在缺失的情况下,明确合伙作为一个独立的民事主体完全可以在不违反法律的强制性规定的情况下,通过取得股东资格的方式来实现其合伙利益最大化的目标,并且合伙完全可以作为股东,享有公司股东的权利和承担股东的义务。期待本文可以引起相关立法与司法机关的关注。
[Abstract]:One of the reasons for the formation of a common share is that the partnership is qualified as a shareholder. Many countries, such as Japan, Germany, France and so on, have made detailed stipulations on the share sharing in the company law, but the company law of our country has not made a clear regulation on the share sharing, not to mention the norm of the partnership obtaining the shareholders' qualification. The so-called partnership acquires the shareholder qualification is refers to the partnership organization as a kind of independent natural person and the legal person third kind of civil subject, takes the property which it holds as the capital contribution, obtains the target company shareholder qualification, Thus become the shareholders of the target company, enjoy the rights of shareholders and undertake shareholder obligations. Since neither the Company Law nor the Partnership Law has any relevant provisions on the qualification of the partnership to obtain shareholders, the public lacks a clear understanding of the problem. Therefore, this paper will analyze the shareholder qualification of the partnership from the following aspects: the first part: the rationality of the partnership to obtain the shareholder qualification. From the angle of jurisprudence, civil law and company law, the author tries to find the reasonable support for the partnership to obtain shareholder qualification. At the level of law, the qualification of partner is affirmed, and it is clear that the qualification of partner is not in violation of the current law of our country. The second part focuses on the discussion of the partnership obtaining shareholder qualification. Through the analysis of the main body of the partnership to obtain the shareholder qualification, it is clear which partnership can obtain the shareholder qualification, and through the discussion of the partnership obtaining the shareholder qualification, it shows the way of the partnership obtaining the shareholder qualification legally. Through the summary of the elements of the partnership obtaining the shareholder qualification in order to determine the elements of the partnership obtaining the shareholder qualification, through the discussion of the partnership obtaining the shareholder qualification, people can make the correct judgment in the face of this problem. Finally, through the interpretation of the essence of the partnership to obtain the shareholder qualification, in order to correct the purpose of the partnership to obtain the shareholder qualification. The third part: after discussing the shareholders' qualification of the partnership, the author analyzes the shareholders' rights and the corresponding shareholder's responsibilities as the shareholders of the company. In order to clarify the difference between the exercise of rights and obligations of partnership and natural shareholders and legal shareholders after obtaining the qualification of shareholders, it is clear that the partnership has the right and the way of undertaking obligations. The fourth part briefly expounds some problems that may arise after the partnership acquires the shareholder qualification, and provides the solution for the disputes that may occur. This paper expounds and analyzes the partnership's qualification as a shareholder in detail from many aspects. The purpose of this paper is to make a detailed analysis of the partnership in the absence of existing laws. It is clear that the partnership, as an independent civil subject, can achieve the goal of maximizing its partnership interests by means of obtaining shareholders' qualification without violating the mandatory provisions of the law, and that the partnership can be regarded as a shareholder. Enjoy the rights and obligations of shareholders of the company. It is expected that this article can arouse the attention of the relevant legislative and judicial organs.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2439681
[Abstract]:One of the reasons for the formation of a common share is that the partnership is qualified as a shareholder. Many countries, such as Japan, Germany, France and so on, have made detailed stipulations on the share sharing in the company law, but the company law of our country has not made a clear regulation on the share sharing, not to mention the norm of the partnership obtaining the shareholders' qualification. The so-called partnership acquires the shareholder qualification is refers to the partnership organization as a kind of independent natural person and the legal person third kind of civil subject, takes the property which it holds as the capital contribution, obtains the target company shareholder qualification, Thus become the shareholders of the target company, enjoy the rights of shareholders and undertake shareholder obligations. Since neither the Company Law nor the Partnership Law has any relevant provisions on the qualification of the partnership to obtain shareholders, the public lacks a clear understanding of the problem. Therefore, this paper will analyze the shareholder qualification of the partnership from the following aspects: the first part: the rationality of the partnership to obtain the shareholder qualification. From the angle of jurisprudence, civil law and company law, the author tries to find the reasonable support for the partnership to obtain shareholder qualification. At the level of law, the qualification of partner is affirmed, and it is clear that the qualification of partner is not in violation of the current law of our country. The second part focuses on the discussion of the partnership obtaining shareholder qualification. Through the analysis of the main body of the partnership to obtain the shareholder qualification, it is clear which partnership can obtain the shareholder qualification, and through the discussion of the partnership obtaining the shareholder qualification, it shows the way of the partnership obtaining the shareholder qualification legally. Through the summary of the elements of the partnership obtaining the shareholder qualification in order to determine the elements of the partnership obtaining the shareholder qualification, through the discussion of the partnership obtaining the shareholder qualification, people can make the correct judgment in the face of this problem. Finally, through the interpretation of the essence of the partnership to obtain the shareholder qualification, in order to correct the purpose of the partnership to obtain the shareholder qualification. The third part: after discussing the shareholders' qualification of the partnership, the author analyzes the shareholders' rights and the corresponding shareholder's responsibilities as the shareholders of the company. In order to clarify the difference between the exercise of rights and obligations of partnership and natural shareholders and legal shareholders after obtaining the qualification of shareholders, it is clear that the partnership has the right and the way of undertaking obligations. The fourth part briefly expounds some problems that may arise after the partnership acquires the shareholder qualification, and provides the solution for the disputes that may occur. This paper expounds and analyzes the partnership's qualification as a shareholder in detail from many aspects. The purpose of this paper is to make a detailed analysis of the partnership in the absence of existing laws. It is clear that the partnership, as an independent civil subject, can achieve the goal of maximizing its partnership interests by means of obtaining shareholders' qualification without violating the mandatory provisions of the law, and that the partnership can be regarded as a shareholder. Enjoy the rights and obligations of shareholders of the company. It is expected that this article can arouse the attention of the relevant legislative and judicial organs.
【学位授予单位】：华东政法大学
【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 沈贵明;论股东资格的认定[J];河南司法警官职业学院学报;2004年04期
2 沈贵明;刘瞳;;论合伙股东[J];河南省政法管理干部学院学报;2009年05期
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