夫妻一方处分夫妻共有股权问题研究

发布时间：2019-01-30 18:51

【摘要】：随着经济社会的发展,夫妻共同财产数额日益增加,夫妻共同财产的投资方式越来越广泛,夫妻共同财产出资有限责任公司入股是现在众多投资选择中较为普遍的一种。与此同时,股权转让争议在夫妻财产纠纷中所占比例逐年上升,在婚姻关系存续期间,夫妻一方擅自处分夫妻共有股权的案例屡见不鲜,相类似的案例,由于法官的法律素养、法理认识和价值倾向不同,出现了截然相反的判决结果,有损司法权威,也影响法律指引作用的实现。本文全文包括引言、正文和结论三个部分。引言部分阐述了本文研究工作的起因、国内外的研究现状、和本文的研究思路、目的、意义等。正文部分包括四章。第一章为夫妻共有股权概述。具体分为三个部分:第一部分是对夫妻共有股权的基本含义进行分析论述;第二部分是对夫妻共有股权的形成方式和表现形式进行分析;第三部分是对夫妻共有股权的性质进行分析。以求对夫妻共有股权有一个整体明确的认知。第二章为一方处分夫妻共有股权行为的司法实务现状分析。具体分为两个部分:第一部分从司法实践案例入手,分析诉争焦点及同案不同判的原因;第二部分针对争议焦点,分析法律适用,并提出笔者观点。第三章对夫妻一方处分夫妻共有股权行为的性质进行认定以及在司法实践中对上述行为的救济方式进行分析论证。根据具体情况,分为两种情形:第一种情形是夫妻一方仅有一人出现在股东名册和工商登记上,此时构成无权处分,一般通过善意取得制度对善意第三人进行救济,并通过《婚姻法》第47条对非股东配偶进行救济;第二种情形是夫妻双方均出现在股东名册和工商登记上,此时构成了表见代理,一般通过追偿权、抗辩权进行救济。第四章对处分夫妻共有股权行为可能产生纠纷的环节提出预防建议,并结合理论与实践,从完善制度建设角度提出了明确制度适用、预防争议出现的方法。具体包括:从制度上明确股权为夫妻共有财产;设立共有登记制度并设置公示期;设立夫妻共同财产管理制度;为股东配偶放宽查阅权限及加强普法教育等,用上述方式完善股权登记、转让制度,强化股权公示及知情权保护。结论部分表明笔者态度,夫妻共有股权属于夫妻共同财产,根据夫妻共有股权的权利外观的表现形式,可以将夫妻一方处分夫妻共有股权行为从无权处分和表见代理两个角度进行分类并予以救济,从价值取向上进行统一,从制度完善上进行预防和解决,以实现司法判决的统一,司法公信力的提升。
[Abstract]:With the development of economy and society, the amount of common property of husband and wife is increasing day by day, and the investment mode of joint property of husband and wife is more and more extensive. At the same time, the share transfer dispute in the property dispute between husband and wife has been increasing year by year. During the marriage relationship, there are common cases of unauthorized disposition of the joint ownership of the husband and wife by one of the spouses. Similar cases, due to the legal literacy of the judge, Different legal cognition and value tendency lead to the opposite judgment result, which impair the judicial authority and influence the realization of the legal guidance function. This paper includes three parts: introduction, text and conclusion. The preface describes the causes of this study, the current research situation at home and abroad, and the research ideas, purposes and significance of this paper. The text includes four chapters. The first chapter is the summary of the joint ownership of husband and wife. It is divided into three parts: the first part is to analyze the basic meaning of the joint ownership of husband and wife, the second part is to analyze the form and manifestation of the joint ownership of husband and wife. The third part is the analysis of the nature of the joint ownership of husband and wife. In order to have a clear understanding of the husband and wife share ownership. The second chapter is the analysis of the judicial practice of one-party disposition of the joint ownership of husband and wife. Specifically divided into two parts: the first part from the case of judicial practice, analysis of the focus of litigation and the causes of different judgments in the same case; the second part of the focus of the dispute, analysis of the application of the law, and put forward the author's point of view. The third chapter identifies the nature of a couple's disposition of the joint ownership of the husband and wife, and analyzes and demonstrates the relief mode of the above behavior in the judicial practice. According to the specific circumstances, there are two kinds of cases: the first is that only one spouse appears on the register of shareholders and the business registration, which constitutes no right to dispose, and generally relief the third person in good faith through the system of bona fide acquisition. And through the "Marriage Law" Article 47 to the non-shareholder spouse relief; The second situation is that both husband and wife appear on the register of shareholders and industrial and commercial registration. In the fourth chapter, the author puts forward some suggestions on how to deal with the possible disputes between husband and wife, and puts forward some methods to prevent disputes from the perspective of perfecting the system construction. Specific include: from the system clear that the ownership is the joint property of husband and wife, set up a joint registration system and set up a public notice period, set up a common property management system of husband and wife; In order to relax the access authority of shareholders' spouses and strengthen the education of law popularization, we should improve the system of stock registration and transfer, strengthen the publicity of stock rights and the protection of the right to know. The conclusion shows the author's attitude that the joint ownership of husband and wife belongs to the joint property of husband and wife, and according to the appearance of the right of joint ownership of husband and wife, In order to realize the unification of judicial decision, we can classify and remedy the joint ownership behavior of husband and wife from the two angles of unauthorized disposition and apparent agency, unify the value orientation, prevent and solve from the system perfection, so as to realize the unification of judicial decision. The promotion of judicial credibility.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9

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