出资瑕疵之股权转让问题研究

发布时间：2019-05-07 12:53

【摘要】：股东出资形成公司独立财产,是股东对公司最基本的义务,虽然我国《公司法》和相关法律法规对股东的出资义务进行了比较明确的规定,但在现实生活中,出资瑕疵的现象仍然屡见不鲜,股东的出资瑕疵直接导致了出资瑕疵股权的产生,但根据商事外观主义原则,出资瑕疵股东仍然具有合法的股东资格,仍然可以进行股权的出让,出让的一般形式为出资瑕疵股权转让合同,但出资的瑕疵必然导致股权的瑕疵,因此出资瑕疵股东的股权会受到相应的限制。出资瑕疵股权的出让,对出让人、受让人、公司、公司其他股东和其他第三人都产生了不同的法律效力,出让人因此退出公司,获得股权转让款；受让人获得股权,成为公司股东；公司需要为受让人办理登记等手续；公司其他股东不得妨碍受让人在公司权利义务的行使；而其他第三人则可依据工商登记等公示文件去认知股东。在股权出让过程中,出让人和受让人基于合同关系产生了相应的义务和责任,同时他们对于公司、公司其他股东和债权人都负有一定的义务。出让人负有对公司的差额填补义务,对公司原守约股东的通知义务和违约责任,对公司债权人的填补清偿义务。受让人成为公司股东后,负有对公司的连带补足出资的义务,对公司股东的诚信义务和违约责任,对公司债权人的连带补充赔偿义务。若违反义务,则需要承担相应的责任。在股权转让后,各方主体的权利救济至关重要。公司权利方面,运用公司代表诉讼追讨赔偿,用股东资格解除权解除出资瑕疵股东的股东资格；在守约股东的损害赔偿诉讼中,具体了公司其他守约股东的权利救济范围；债权人可以通过提起代位权诉讼来保障其债权的实现；受让人则可利用抗辩权和追偿权来维护自身权益。明确出让人和受让人在股权转让中的义务和责任,并且对其他主体的权利救济有了具体的方式,希望对出资瑕疵股权的出让能起到一定的规范作用。
[Abstract]:Shareholders' contribution to form independent property of the company is the most basic obligation of shareholders to the company. Although China's Company Law and relevant laws and regulations have made a relatively clear provision on the obligation of shareholders to contribute capital, but in real life, The phenomenon of capital contribution defect is still common, and the shareholder's capital defect directly leads to the emergence of capital contribution defect stock right, but according to the principle of commercial externalism, the defective shareholder of capital contribution still has the legal shareholder qualification. It is still possible to sell the stock, the general form of which is the transfer contract of the defective equity, but the defect of the contribution will inevitably lead to the defect of the stock right, so the equity of the shareholder of the defective contribution will be restricted accordingly. The transfer of defective equity has different legal effects on the transferor, transferee, other shareholders and other third parties, so that the transferor exits the company and obtains the equity transfer money. The transferee acquires the stock right and becomes the shareholder of the company; the company needs to register for the assignee; the other shareholders of the company shall not hinder the exercise of the assignee's rights and obligations in the company; Other third parties can recognize shareholders based on public documents such as industrial and commercial registration. In the process of the transfer of shares, the assignor and the assignee have corresponding obligations and responsibilities based on the contractual relationship. At the same time, they have certain obligations to the company, other shareholders and creditors of the company. The assignor has the obligation to fill the balance of the company, the obligation to notify the original stockholders of the company and the obligation to breach the contract, and the obligation of satisfaction to the creditors of the company. When the transferee becomes a shareholder of the company, he has the obligation to contribute jointly and severally to the company, the obligation of good faith and breach of contract to the shareholder of the company, and the obligation of joint and several supplementary compensation to the creditors of the company. If the obligation is breached, it is necessary to bear the corresponding responsibility. After the transfer of shares, the right relief of the parties is very important. In the aspect of company rights, the company's representative litigation is used to recover the compensation, and the shareholders' qualification to disqualify the shareholders of defective capital contribution is used to remove the shareholders' qualifications of the defective shareholders, and the scope of relief for the rights of the other shareholders of the company is specified in the damage compensation litigation of the contract-abiding shareholders. Creditors can guarantee the realization of their claims through subrogation litigation, while assignees can protect their rights and interests by means of defense rights and recovery rights. This paper makes clear the obligations and responsibilities of transferor and transferee in the transfer of equity, and has a specific way to remedy the rights of other subjects, hoping to play a normative role in the transfer of defective equity in capital contribution.
【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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