公司设立无效下的债权人利益保护机制

发布时间：2019-06-17 08:51

【摘要】：保护公司、股东、债权人的合法权益是我国公司法的立法宗旨,但由于“效率至上”和“股东中心主义”立法理念的影响,过度重视对股东和公司利益的保护,我国公司法律对于债权人利益的保护存在严重缺陷。如何对公司设立无效纷争中的债权人提供有效的法律保护,见诸于我国学界和实务界广泛的研究和讨论中,然而,目前有关文献的论述仅仅关注了法律制度的移植,而鲜有从本土化和价值向度的角度对我国立法的缺陷进行解读和反思。本文重点从保护交易安全、注重制度公平的角度出发对我国公司设立无效下的债权人利益保护机制的完善进行了探讨：第一,本文首先从公司设立无效的法律认定、公司设立无效与债权人利益保护的关系、公司设立无效下债权人利益保护机制的制度价值三个方面出发,论述了我国公司设立无效下债权人利益保护机制的基本理论；其次通过考察我国公司设立无效下债权人利益保护机制的立法现状和局限、司法现状和困境,揭示了完善我国公司设立无效下债权人利益保护机制的现实必要性。通过前述研究为完善我国公司设立无效下债权人利益保护机制奠定理论和现实基础。第二,本文通过大陆法系和英美法系主要代表国家和地区有关公司设立无效下债权人利益保护的法律原则、诉讼制度、救济渠道的详细考察,揭示了注重对包括债权人在内的公司利益相关者的法律救济和保护,在立法理念上对效率至上的立法原则进行公平矫正,注重法律的系统和严密,是两大法系主要国家和地区显著的共性,表明我国完善公司设立无效下债权人利益保护机制,是推进法治现代化的重要方向。第三,本文从立法的价值向度出发,提出完善我国公司设立无效下的债权人利益保护机制必须实现三大价值观念的转换,并以立法价值理念转换为前提,提出制度完善的具体构想；①首先借鉴台湾的相关立法,正视我国公司法公司瑕疵设立行政撤销模式的制度缺陷,从限缩和规范行政权力,公平保护公司利益相关者的角度出发,确立我国公司设立无效的司法裁决制度；②为保障债权人的债权安全,改变债权人对公司信息获取的不利处境,对无效公司的审计和公司经营期间的公示事项进行细化和规范；③借鉴美国等国家的公司治理经验,规定公司治理机制中设立债权人委员会,由债权人委员会对攸关自身利益的公司经营事项参与公司决策,以保障债权安全；④完善公司设立无效下的责任追究制度和债务清偿原则,规定公司董事、负责人、直接关系人就公司瑕疵设立存在的严重过错承担民事、行政、刑事责任,以规范公司设立行为,扩大债权追索的主体范围,保护交易安全。本文的创新在于：①注重法律移植的本土化,通过考察大陆法系、英美法系主要国家和地区的相关机制,以我国公司设立无效下债权人利益保护的现状和局限为基础,在此基础上完善相关制度,以提高立法的针对性和实用性；②注重对法律价值的分析和运用,主张我国公司设立无效下债权人利益保护机制的完善,首要的问题在于立法价值理念的转换,就我国立法现状而言,重点在于改变对公司和股东过分保护的模式,关注包括公司债权人在内的公司利益相关者利益的法律保护,以实现法律制度的内在公平。本文的主要不足是：由于信息化还未得到全面普及,在写作过程中笔者一直试图收集公司设立无效纠纷的诉讼案例,选取其中的典型案件为样本以对论题进行实证分析,但效果甚微,对研究成果的价值和意义造成了一定的消极影响。
[Abstract]:To protect the lawful rights and interests of the company, the shareholders and the creditors is the legislative purpose of the Company Law of our country, but due to the influence of the efficiency first and the shareholder-centrism's legislative idea, the protection of the shareholders and the interests of the company is paid too much, and the law of our company has serious defects in the protection of the interests of the creditors. How to provide effective legal protection to the creditors in the establishment of an invalid dispute in the company, see the extensive research and discussion in the academic and practical circles of our country, however, the present discussion of the literature is only concerned with the transplantation of the legal system, However, it is rare to interpret and reflect on the defects of our country's legislation from the angle of localization and value. This paper focuses on the improvement of the protection mechanism of the creditor's interest under the ineffectiveness of the establishment of our company from the point of view of protecting the transaction security and paying attention to the system fairness. First, this article first set up an invalid method from the company According to the law, the relationship between the establishment of the company and the protection of the interests of the creditors, the establishment of the system value of the protection mechanism of the creditor's interests under the effect of the establishment of the company are three aspects, and the basis of the establishment of the mechanism for the protection of the interests of the creditor under the effect of the establishment of the company is discussed. Secondly, through the investigation of the status and limitation of the legislation of the creditor's interest protection mechanism in our country, the present situation and the dilemma of the judicial system, this paper reveals the reality of perfecting the protection mechanism of the creditor's interest under the ineffectiveness of our company. The necessity of establishing the theory and present for perfecting the protection mechanism of the creditor's interest under the ineffectiveness of our company through the above-mentioned research The second, through the continental law system and the Anglo-American law system, the legal principle, the litigation system and the relief channel of the protection of the interests of the creditors are mainly represented by the relevant companies in the countries and regions. The detailed investigation of the legal relief and protection of the company's stakeholders, including the creditors, is to make a fair correction to the legislative principle of efficiency first in the legislative concept, pay attention to the system of law and the law, and it is the main country and region of the two legal systems The remarkable commonness shows that the establishment of an invalid creditor's interest protection mechanism in our country is the promotion of the modernization of the rule of law Third, from the view of the value of the legislation, this paper puts forward that the mechanism of protecting the interests of the creditor under the condition of the establishment of our company must realize the transformation of the three values, and put forward the system based on the conversion of the concept of the legislative value. On the basis of the relevant legislation of Taiwan, we should first use the relevant legislation of Taiwan, and face the defects of the system defect of the company's company law company, and set up the ineffectiveness of the establishment of our company from the angle of the limitation and the regulation of the administrative power and the fair protection of the company's stakeholders. The system of judicial decision; in order to guarantee the security of the creditor's rights, change the unfavorable situation of the creditor to the information of the company, and refine and standardize the public announcement matters during the audit of the invalid company and the operation period of the company; and draw lessons from the countries such as the United States The company's corporate governance experience, which provides for the establishment of a creditor committee in the corporate governance mechanism, is involved in the company's decision-making by the creditor committee to engage in the company's decision-making in order to guarantee the safety of the creditor's rights, and to improve the system of accountability and the principle of the repayment of the debt in the case of the establishment of the company, and to provide for the public The directors, principal and direct persons of the Division shall be responsible for the civil, administrative and criminal responsibility for the serious fault in the establishment of the Company's defects, to standardize the establishment of the Company and to extend the scope of the recourse of the creditor's rights. The innovation of this paper is to focus on the localization of the legal transplant, through the investigation of the relevant mechanisms of the main countries and regions of the continental law system and the common law system, based on the present situation and the limitation of the protection of the interests of the creditor under the ineffectiveness of our company, here On the basis of improving the relevant system, so as to improve the pertinence and practicability of the legislation, we should pay more attention to the analysis and application of the legal value, and advocate the perfection of the protection mechanism of the creditor's interest under the ineffectiveness of our company, and the first question is the conversion of the concept of the legislative value. In the light of the present situation of our country's legislation, the focus is to change the pattern of over-protection of the company and the shareholders, pay attention to the legal protection of the interests of the company's stakeholders, including the company's creditors, in order to realize In the process of writing, the author has been trying to collect the case of an invalid dispute in the company, and select the typical case as the sample for the purpose of the thesis. An empirical analysis is made, but the effect is very little, and the value and meaning of the research results
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91

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